A PRIMER ON CANADIAN COPYRIGHT LAW
- Reading Time: ~7 Minutes
Copyright is like our daft cousin who’s nice enough but an utter bore. When we complain to our parents about spending time with said cousin, they respond, “But your daft cousin is family.”
So whatever your feelings about copyright, it’s essential for writers to have a grasp of the fundamentals – because copyright is family: it’s the butter that butters your bread, if you’ll pardon my mixed metaphors. So let’s activate the left side of our brains and jump right in.
WHAT IS COPYRIGHT?
Copyright is a legal concept that falls under the Intellectual Property (IP) umbrella. IP also covers patents, trade-marks, and a few other obscure things (e.g. integrated circuit topography). This is an important distinction, because IP and copyright are not synonyms.
Canadian copyright falls under Federal jurisdiction and is known as the Copyright Act. The simplest way to think of copyright is as a legal monopoly granted by the government to ensure that a creator can profit from his/her work. As its name implies, copyright protects someone’s creation from being “copied” without the creator’s consent.
Of course, what “copy” means today is vastly different from what it meant 300 years ago, when copyright was formulated as a response to the proliferation of printing presses in England. Many of today’s legal headaches surrounding copyright stem from the definition of this word, both as a verb and a noun.
WHAT CAN I COPYRIGHT?
One of the key concepts about copyright is that it applies only to the expression of an idea. If anyone’s ever said to you, “You can’t copyright ideas,” they’re right.
So what constitutes an expression? You’re on solid ground if your work meets the following three criteria: originality, fixation, and nationality.
Originality is the most elusive of the three criterion because it’s not explicitly defined. Common sense points us in the right direction: the work must originate from the author and can’t be the copy of another work, and it must be the result of a creative effort in which the author uses skill, judgment, and labour. An original play would qualify, as would an adaptation and/or translation of another work.
Fixation doesn’t refer to an unhealthy obsession with your own work, but to the idea that your work must be “fixed” in a tangible form. For playwrights, this boils down to a manuscript. Reciting your play from memory to your neighbour is an impressive feat, but until you write it down it can’t be copyrighted.
Nationality refers to the creator: he/she must be a citizen of a treaty country, such as Canada, in order to benefit from copyright protection.
HOW DO I REGISTER MY COPYRIGHT?
Here’s the good news: it’s not necessary. As long as your work meets the criteria enumerated above, your work is automatically copyrighted; you don’t need to register it or even put the © symbol anywhere.
You’ve probably heard of the “poor person’s copyright” (i.e. mailing yourself a copy of your script) as a way of safeguarding your work. Trouble is, it doesn’t have much, if any, legal clout. If you do want to make your copyright “official”, you can register your work through the Canadian Intellectual Property Office. Registration costs $65 by mail or $50 via their website.
WHAT EXACTLY DOES COPYRIGHT PROTECT?
Copyright offers two-fold protection for creators: economic rights and moral rights.
Economic rights are the ones we usually associate with copyright: the right to produce, reproduce, perform, publish, translate, and adapt your work. It’s your prerogative to authorize, assign, or license any of these rights – and almost always in exchange for remuneration, hence their name. Playwrights, for example, license a theatre to perform their work for a set number of performances in exchange for an advance and/or a percentage of the box office returns.
Economic rights are distinct and exclusive. The former means that each right is distinct from one another and as such can be dealt separately (you can sell translation rights to one person and adaptation rights to another person). Exclusive refers to the fact that you (and only you) can decide what to do with each right.
Moral rights work slightly differently. They can be divided into three: the rights of integrity, attribution, and association.
The right of integrity protects works from being distorted in ways that would harm the author’s reputation. Say a producer took your Ibsenesque drama and turned it into a bedroom farce. You might have grounds to stop the production because it impedes on your right of integrity.
The right of attribution means that you can decide how your work is credited. If you want to use a pen name, for example, or publish anonymously, this is the clause that gives you that right.
Finally, the right of association means you can control what product, service, cause, or institution is associated with your work.
With the exception of the right of attribution, moral rights aren’t clear-cut: you have to prove that your reputation suffered as a result of changes that were made or associations created with your work.
However, unlike economic rights, moral rights cannot be transferred, assigned, or sold. So even if a producer buys every economic right to your work, the moral rights still belong to you. The only thing you can do is agree to waive your moral rights (i.e. refrain from enforcing them).
There’s a provision in the Copyright Act called fair dealing, which is a set of limitations on a creator’s rights. There are five categories under which use of your work does not constitute infringement: research, private study, criticism, review, and news reporting. For example, fair dealing allows critics to use quotations from your play in their published review.
It’s important to note – and this is specific to Canadian copyright law – that use of copyrighted material is considered fair dealing only if it falls under one of the above five categories. This is why, incomprehensibly, parody isn’t considered fair dealing in Canada.
Copyright has a fixed expiry date, after which a work falls into the public domain. In Canada, a work is copyrighted for the life of the author plus fifty years; in much of the rest of the world, the term is life of the author plus seventy years.
Works in the public domain effectively become public property, available for anyone to use as he/she sees fit. For artists, it’s an invaluable repository of source material and represents one of the most beneficial aspects of copyright law.
People will often speak of digital/electronic rights as a separate category of copyright, but this isn’t the case: copyright covers your work regardless of the medium. In fact, digital rights refer more to DRM (Digital Rights Management), which are the mechanisms in place to enforce copyright on the Internet and devices like the iPod or Amazon’s Kindle. While DRM is a whole other kettle of fish and beyond the scope of this article, it’s worth mentioning because it’s one of the main points of contention of copyright reform, including Canada’s Bill C-61.
Before the October 14 election, the Conservative government introduced Bill C-61, which sought to update the Copyright Act. The bill generated widespread criticism for not striking the right balance between creator rights and user rights, and many felt it was modelled on the controversial U.S. Digital Millennium Copyright Act (DMCA). Bill C-61 died on the table when the election was called, but the Harper government promised to introduce the bill again if re-elected.
Creative Commons is a non-profit organization started by Stanford law professor Lawrence Lessig. It provides copyright licences that creators can use to release specific economic rights (e.g. right of reproduction) while retaining others; think of it as a middle road between full copyright and the public domain. Though CC licences were originally created with music in mind, they have their applications for writers.
I’ve only touched on the fundamentals of copyright, but I hope it’s enough to pique your interest. In a future issue of CanPlay, I’ll examine a number of playwright-pertinent aspects of copyright law and share a few contrarian views and ideas.
For those of you keen to learn more, the suggested books and websites below are good starting points. As for the rest of us, we can safely switch back to the right side of our brains.
SUGGESTED READING & WEBSITES
Canadian Copyright: A Citizen’s Guide by Laura J. Murray & Samuel E. Trosow
Free Culture by Lawrence Lessig (available online at www.lessig.org)
The Canadian Copyright Act
Canadian Intellectual Property Office
Creative Commons (Canada)