Christene Hirschfeld—Canadian copyright: The new rules (EAC conference 2013)

“I was boring myself when I put together this presentation,” copyright lawyer Christene Hirschfeld joked as she started off her EAC conference presentation, adding, to audience laughter, “I could not find a way to make this topic interesting.” Her overview of the 2012 amendments to Canada’s Copyright Act stimulated a huge amount of discussion, however, and I think all of the editors in that room would agree that the talk was anything but boring.

Hirschfeld started us off with a bit of historial background: Canada’s Copyright Act was passed in 1921, with significant amendments in 1988, 1997, and 2012. In 1988, computer programs were added as “works,” new licensing arrangements for orphan works (works whose copyright owners cannot be identified) were added, and the extent of moral rights was clarified. Moral rights include the right to be identified or not identified as the author of a work, as well as the right to protect the integrity of the work. Moral rights can’t be assigned, so in a situation of work for hire, there has to be an explicit waiver of moral rights. (There are no moral rights in the U.S.)

The 1997 amendments included a copying levy on blank tapes, new copyright exceptions for special groups (that allow the reproduction of large-print books for visually impaired readers, for example), and an increase in damages for infringement.

In Canada, Hirschfeld said, copyright doesn’t have to be registered, but if you do register, it’s relatively cheap ($65). You send in a copy of the work, and the copyright office sends it back with a certificate of registration. The problem is that they register the work based on the name of the item, and they don’t keep a copy of the work, so if you change its name, you essentially lose the registration.

Why would you bother registering? Hirschfeld pointed out that it reverses the onus of proof: rather than having to prove that someone infringed, the other party would have to prove that they didn’t infringe. Also, registering can make a difference in the realm of statutory damages that are awarded if infringement is found.

The 2012 amendments were much anticipated, with many false starts in 2010 and 2011. The legislation covers a huge range:

Photographs

To align photography with other means of creative production, the photographer now owns copyright to a photo. Exceptions are when a photographer is an employee or there is a written contract assigning copyright.

(As an aside, Hirschfeld cautioned us all to be very careful about the photos and images that web developers may use when building a website for you. Even if your contract states that they are responsible for all licensing fees, if they go out of business or can’t be contacted, the big stock agencies such as Getty Images will come after you.)

Performers’ moral rights

Performers who own copyright will hold moral rights in a performance. Hirschfeld warned us, however, that music rights are complex and layered, and she told us that an arranger doesn’t have a copyright interest.

Non-commercial user-generated content

Known casually as the “YouTube exception,” this amendment essentially says that if you create a new work, showing skill and judgment, using protected work in a non-commercial context (for example, you record a video of your three-year-old lip synching and share it on YouTube), it isn’t considered infringement. However, attribution is required where reasonable, and the dissemination of the work can’t have any substantial adverse effect on the copyright holder. (Hirschfeld admitted, though, that there’s no standard test for “skill and judgment.”)

Format shifting

You may reproduce a work if

  • the original was not an infringing copy,
  • you legally obtained the original, and
  • the reproduction is for your private purposes.

You may record for later listening or viewing if

  • the program is legally received,
  • you make only one recording,
  • you use that recording for private purposes,
  • you do not distribute the copy, and
  • you keep the recording for no longer than reasonable to listen or view at a more convenient time.

Backup copies

It is legal to back up a source copy of a work if

  • the backup is only for use in case of loss or damage to the original,
  • the source copy does not infringe, and
  • you don’t break a digital lock.

You also have to destroy all copies if you lose title or license to the source copy.

Technical protection measures

You can’t break a digital lock. Consequences of doing so could be a fine of up to $1 million and a prison term of up to five years.

Internet service provider liability

It constitutes infringement to provide Internet-based service primarily to enable copyright infringement.

Fair dealing

Fair dealing is an exception to infringement. To be fair dealing, the purpose of your work must be

  • research,
  • private study,
  • criticism, or
  • news reporting.

As of 2012, the following were added:

  • parody,
  • satire, and
  • education.

Hirschfeld noted, though, that what constitutes “news reporting” could be open to a lot of interpretation. In fact, she offered a practical outlook to most issues of copyright, saying that although something may be law, enforcing it means you have to go to court, and lawyers are expensive. Further, it can be hard to find police officers and judges who take copyright infringement and intellectual property seriously.

Some audience members asked about the legality of keeping a copy of an author’s work on their computer for safekeeping. Realistically, said Hirschfeld, who’s going to know? Legally, though, you should spell this practice out in terms and conditions on a contract. State very clearly how and why you might keep a copy of a work but explain that you won’t distribute it without permission. Similarly, if you need text to use for an editing sample, inform the clients about this possibility (with details such as word count) through your terms and conditions, and make sure they sign off.

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