Under the Copyright Act, where the author of a
work creates the work in the course of his or her
employment, the employer is the owner unless
there is an agreement to the contrary.
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work in the course of his or her employment, the employer is
the owner unless there is an agreement to the contrary. That
said, Oakcraft owned the copyright.
The defendants also relied on Oakcraft’s failure to claim
copyright by marking its ownership on the plans. They lost
on that point, too, as neither an intention to infringe or even
knowledge of copyright was found to be a relevant consid-eration.
The judge said that the Ecklands knew the plan
originated with Oakcraft and that Toscana had a duty to
enquire. Toscana was found to have failed to fulfil its duty.
Finally, the court had to decide if the defendants had
indeed infringed the copyright. The court found that the
defendants had substantially copied Oakcraft’s plan. The
judge found the Ecklands and Toscana jointly and severally
liable to Oakcraft for copyright infringement and ordered
that they pay damages and costs.
Although a consumer might save some money by shopping
around, it is clear that one cannot shop around copyrighted
material with impunity. Moreover, if a contractor is pre-sented
with a plan or other material and a request to copy or
otherwise make a manifestation of it (like building a house),
the contractor cannot be wilfully blind and fail to make cer-tain
the material may be copied. Failure to ascertain the
ownership of copyright can turn a project into an otherwise
avoidable legal money pit.
Steven Z. Raber is a lawyer,
registered trademark agent and
trained mediator at Fillmore
Riley LLP. You may reach Steven
at 204-957-8304 or by email at
stevenraber@fillmoreriley.com.
68 Q2 2018 www.pilingcanada.ca
