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A Copyright Tutorial

By Lesley Ellen Harris

As a journalist, you are, whether you realize it or not, dependent upon copyright law. It is the underlying basis which enables you to make your living. The right to use the copyright in your creation is what you grant to your editor and publisher in exchange for money. Thus, for a writer, understanding copyright is as essential as understanding the rules of grammar.

As a journalist, the knowledge of copyright will not only ensure your own rights are protected, but it will help provide you with a foundation for covering stories relating to the Internet, free trade agreements, and situations of international copyright violations (as in China).

Below are some frequently asked questions about copyright.

What is copyright?

Copyright is, literally, the "right to copy" a creation. Copying may include reproducing (as in photocopying, photographing or scanning into a computer), performing public, publishing in print or electronic format, adapting, translating and broadcasting. Only the owner of copyright may do these things with a creation or authorize others to do so.

What are electronic rights?

Electronic rights are part of the "bundle" of rights which the copyright gives to owners of copyright materials. If you own a work, you own the electronic rights in it unless you have given them away. By assigning or licensing other rights such as the right to publish a book, you do not automatically assign or license your electronic rights. In fact, writers are regularly advised to retain their electronic rights and negotiate them at a later time for additional compensation. Electronic rights covers a variety of rights including website rights, database rights, on-line rights and CD-ROM rights. You can separately negotiate for each type of electronic right.

What is protected by copyright?

Copyright exists in every original literary, dramatic, musical and artistic work and in sound recordings and audiovisual works. As examples, copyright protects books, scripts, songs, computer software, CD-ROMs, paintings and videos, as long as they are original, that is, they have not been copied and their creation involved some skill and labour.

Is there copyright in ideas?

No. There is no copyright in ideas, information, facts, history or news events. The expression of these ideas, etc. are protected by copyright. To illustrate this point, copyright will protect the words used in a book on how to build a log cabin, but anyone may, without permission, build a log cabin following the instructions in the book.

How do I obtain copyright in a work?

You have copyright in your work from the moment it is created. Once the creation is in a fixed form (e.g. on paper or in your hard drive), you automatically have copyright protection if you are a Canadian citizen or resident or are otherwise eligible for protection in Canada. No registration or deposit of your work is required.

Should I register my work?

There is a voluntary registration system for a fee of $35. Registration information can be obtained from: The Copyright Office, Canadian Intellectual Property Office, Industry Canada, Place du Portage, Phase I, 50 Victoria Street, Hull, Quebec K1A 0C9. The telephone number is (819) 997-1725 and the fax number is (819) 953-6977. Since the Canadian Copyright Office will not accept deposits of copyright works, some creators deposit their works in the U.S. Copyright Office, or if it's a television or film treatment or script, with the Writers' Guild of Canada. Also, some creators sent a copy of their work to themselves by registered mail and only open it, if necessary, before a court of law.

Do I have to mark my work with the copyright symbol?

Although not mandatory under Canadian copyright law, marking your work with the copyright symbol, author's name and date of publication, is a good reminder to others that copyright exists in your work.

© Jane Doe 1997

How do I get copyright in other countries?

If you have copyright in Canada, you are protected in over 100 countries according to the laws where that work is used. For example, you have protection in the U.S. under U.S. copyright laws. Similarly, Americans have copyright protection in Canada under Canadian copyright law.

How long does copyright last?

n Canada, the general rule with respect to literary works is that copyright lasts for the life of the author until fifty years until the calendar year end of his or her death. For example, an author who dies on March 3, 1950 has copyright protection in her works until December 31, 2000.

Who owns the copyright in my writings if I work for a magazine, the government or a company?

If you are an employed writer, your employer owns the copyright in the works you create during your employment unless you have agreed otherwise. However, if you are a freelance writer with a magazine or a government contract, you are usually not considered an employee and you will probably own the copyright in your work. A contract outlining ownership of copyright will provide the greatest certainty for freelancers and independent contractors.

Are staff writers on magazines and newspapers considered employees under copyright law?

Yes, but such writers have the right to stop the publication of an article if the employer attempts to publish it somewhere other than in a newspaper, magazine or similar periodical.

Which is better: selling or licensing the copyright in my work?

The general rule is not to sell your copyright. Each time your work is photocopied, translated, performed in public, or made into a film or play, you, as the copyright owner are the only one entitled t authorize such uses of your work and to be paid for them. Therefore, license your copyright, that is, license those rights which the editor, etc. required with respect to the work, and explicitly retain all other rights (for example, electronic rights).

Do I need a contract each time I sell or license my work?

The law requires a written agreement whenever you sell copyright in a creation or "grant an interest" by means of a license. Thus, when you give mere permission to publish an article in a newspaper, for example, you do not need an agreement in writing. However, it is always a good idea to have something in writing so both parties are aware of the conditions concerning the use of the copyright work.

Who owns copyright when an author dies?

Copyright may be passed on to a person's heirs, either specifically in a will, or as part of the estate of the author.

Are there other rights related to copyright which a writer has in his or her work?

All authors, even after they have sold or licensed the copyright in their works, retain moral rights. These moral rights give the author the right to claim authorship, remain anonymous or use a pseudonym. Also, authors may restrain any distortion, mutilation or other modification of their work which would be prejudicial to their honour or reputation. Further, authors may restrain any "prejudicial" use of their creations in association with any product, service, cause or institution. Unlike copyright rights, moral rights cannot be assigned or licensed; however they can be waived, that is, the author can agree not to exercise one or all of them.

Can moral rights be violae when a magazine article is violated?

This is not a likely situation. The distortion or mutilation will be considered as such only if it is judged to be prejudicial to the author's honour or reputation. An example of such a situation might be where a screenplay is a distorted interpretation of a stage play.

Can small parts of an article or book be photocopied?

Yes, "small portions" may be used without permission of the copyright owner if for the purposes of private study, research, criticism, review or newspaper summary. However, no court has ever interpreted the amount which constitutes a "small portion." Some speculate that copying an entire one-page poem would be a violation of copyright, whereas copying one page of a 300-page book would not be, unless that one page was the substance of the whole book.

How can I know when my works are photocopied in schools, businesses and libraries?

It is next to impossible for authors to be aware of every photocopy being made of their work. However, there are associations of copyright holders, known as "collectives", which collect money for photocopying and distribute the money to its copyright holder members. The collective for the reprography of English-language materials is CANCOPY at 6 Adelaide Street East, Suite 900, Toronto, Ontario MSC 1H6. The telephone number is (416) 868-1620 or 1- 800-893-5777; the fax is (416) 868-1621; and E-mail is admin@CANCOPY.com.

This article does not constitute legal advice. Should you have any concerns about your rights, contact a lawyer.


Lesley Ellen Harris is a Copyright & New Media Lawyer and author of the book "Canadian Copyright Law" (2nd. ed., 1995, McGraw-Hill) -- see http://www.mcgrawhill.ca/copyrightlaw. Ms. Harris can be contacted at tel. 416.226.6768 and by E-mail at copylaw@interlog.com.

See also:
Battle Rages Over Electronic Publishing Rights
Electronic Rights (and Wrongs)
CANCOPY and photocopying
If It's Worth Publishing, It's Worth Paying For
Permissions and documentation: When not to worry

 




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