Martha Rans is a copyright lawyer who co-founded the Artists’ Legal Outreach. The ALO runs a legal clinic at which artists and arts organizations can, by donation, have a thirty-minute consultation with a lawyer or law student about a problem related to their artistic discipline, including issues relating to contracts and copyright. Rans spoke to Writing Rights participants about copyright issues, particularly as they relate to writing and translation.
Copyright exists so that creators can protect their intellectual property and allow them to earn money from their work, which encourages creative production. It’s an important value for artists, and most artists’ organizations are vocal in advocating for copyright. Of course, since, as Rans said, “everything about who we are as people is connected to culture and creativity,” we have to strike a balance between artists’ ability to protect their work and users’ ability to gain access to that work; we’ve built into the copyright structure the concept of the public domain.
What’s copyrightable? Books, songs, images, plays, software—forms of creative expression. Copyright doesn’t cover a compilation of facts or titles or utilitarian goods. Concepts and ideas are not covered by copyright; it’s the expression of those ideas that are covered. Copyright covers original work, which means that it must be original to the creator. For example, two people could take photos that happen to look identical, but both images are protected by copyright. Copyright takes effect as soon as you’ve created your work and fixed it in a tangible (including digital) form, and you don’t have to register your copyright. However, if you’re collaborating with other people and it may become necessary for you to clearly establish when you created a work, you might want to register it. Most importantly make sure your name is associated with your work. Including the phrase “All rights reserved” with your copyright notice means that your permission is needed for any use involving your work.
Copyright lasts for a term of death plus fifty years in Canada (now true for photographs, too). In the U.S. and E.U., the term is death plus seventy years; Canada’s shorter term allows our homegrown artists more freedom to explore. Rans said that the issue is not whether you can play around with a work under copyright but, once you’ve done that, whether you can then sell it for commercial purposes. What’s considered commercial? The line isn’t always clearly defined—for example, in cases where you give content away online but charge for advertising on your website or where the content is used by a non-profit or educational institution.
Associated with copyright are moral rights, which includes paternity (the right of attribution) and integrity (the right to prevent your work from being mutilated, distorted, or modified in a way that damages your reputation). Homages are culturally important—they’re genuine creative expressions in their own right—but, Rans advised, put yourself in the shoes of the artist you’re imitating. Often artists care less about the money and more about how their work is being used. Rans also noted that the U.S. doesn’t include moral rights in its copyright act.
If you own copyright to a work, you can assign it, or you can license it. When you assign your copyright, as a writer usually does with a publisher, you retain very little other than moral rights—you essentially sell your ability to control it. Licensing allows others to use your work under specific conditions and often within a specific time frame. Rans stressed that contract negotiation is hugely important, since you’re likely giving up a huge amount of control when you assign your rights. “You need to get independent legal advice when entering into an agreement with a publisher,” she advised, and the ALO clinic offers artists the opportunity to do that.
So what constitutes infringement? Again, there’s no bright-line test. The criterion of “substantial similarity” can be subjective, and something that is infringement to one person may not be infringement to another. If you find yourself accused of infringement, it doesn’t mean that you’ve infringed—but do be prepared to answer the accusation. Rans warns that if you happen to find something you’d like to use—like archival material or old photographs—it’s your obligation to search for the original copyright owner. On the flip side, if you discover your copyright has been infringed, you have to sue the infringer in his or her jurisdiction—which can be tricky for artists of limited means. “It’s important to understand that when you upload something to the Internet, you’re giving up a good deal of control.”
Built into the Copyright Act are exceptions that allow works under copyright to be used in some situations. The most important exception is fair dealing, where works can be used for research, private study, news reporting, and criticism. Bill C-11 recently added three purposes to fair dealing: education, parody, and satire. The education provision is a very contested area at the moment, as it changes the game for educational publishing. (As an aside, Bill C-11 also makes it illegal to circumvent digital rights management.)
Artists hoping to make their work more available can turn to Creative Commons, which is not an alternative to copyright but a licensing framework that is part of copyright. Creators can choose licensing, for example, that allows others to modify their work but requires attribution or that allows others to redistribute their work freely but requires that it remain unchanged.
If you’d like to learn more about Creative Commons, Rans will be a panellist at a Creative Commons Salon on Monday, October 15, from 7pm to 9pm. Admission is free, but you do have to sign up.