Computer Software

– Copyright Act, RSC 1985, c C-42, as last amended in 2023.
– Copyright Regulations, SOR/97-457, as last amended in 2007.
– Patent Act, RSC 1985, c P-4, as last amended in 2021.

Membership in International Conventions

– Berne Convention for the Protection of Literary and Artistic Works, as revised November 13, 1908; Additional Protocol thereto, signed March 20, 1914; revised by Copyright Convention, signed at Rome, June 2, 1928.
– Universal Copyright Convention (1952), ratified May 10, 1962.

General Remarks

The Canadian Patent Office had been employing a "problem-solution approach" for determining essential elements of patent claims, which has resulted in the rejection of applications for computer-implemented inventions where computer elements were deemed not necessary to achieve a particular solution. This approach was rejected by the Federal Court of Canada in an August 2020 decision. The Canadian Patent Office subsequently released updated guidelines on patentable subject matter. A 2022 decision of the Federal Court which also rejected the problem-solution approach has been appealed. Contact your Canadian agent for current information regarding the potential patent-eligibility of computer-implemented innovations. The Federal Court of Canada has held that copyright subsists in computer programs, including programs embodied in a chip. The Copyright Act was amended in June 1988, to specifically include computer programs within the definition of a literary work. In some circumstances, further protection may be derived from the law concerned with trademarks, unfair competition and trade secrets.

The following sections deal with protection of computer programs under the Copyright Act.

Conditions of Software Protection

Registration: not required, but marking of published works according to Article III of the Universal Copyright Convention is advisable. Published and unpublished works may be registered without deposit.

Right to protection: belongs to the author, or to his assignee.

Employee’s software: in the absence of an agreement to the contrary, employer is the owner of the copyright in the work.

Foreigners: same treatment as nationals if citizen of Berne Convention, Universal Copyright Convention or World Trade Organization countries, or countries of the British Commonwealth.

Originality: required.

Effects of Protection

Duration: generally the life of the author plus fifty years.

Assignment and license: must be in writing, and may be registered.

Infringement: copyright owner has the sole right to produce, reproduce, perform, and publish the work or any substantial part thereof including the right to translate, record, rent or communicate the work by telecommunication; exceptions for a single safeguard copy, and under certain conditions, a single copy made by adapting the computer program or translating it into another computer language for compatibility with a particular computer.

Territory covered: Canada.