Automatically Yours:
Introduction to Copyright

Absolute Blank

By Theryn Fleming (Beaver)

Several years ago, when I first started volunteering online, I noticed that some people spelled copyright “copywrite.” My first reaction was amusement; the mistake was perhaps understandable, given that it was a writing community. Once I thought about it, however, my amusement gave way to concern, because the spelling betrayed a lack of understanding of what the word means. I started looking into copyright to in order to rectify the many misconceptions surrounding it, and ended up hooked on the subject.

Copy. right.

Right to copy.

Copyright refers to the rights that the owner of a creative work has, not to writing.

However, as a writer, copyright affects all aspects of your work, and so it’s a good idea to have a basic understanding of what it’s about. Here, then, is an introduction to copyright.

So, what I want to know is, how do you get it? Don’t you have to register or mail your story to yourself or something?

© Copyright Protection is Automatic

To begin at the beginning, there are two principal copyright conventions: the Berne Convention and the Universal Copyright Convention (UCC). 159 countries, including Canada and the US, are parties to the Berne Convention, and 98 countries, including Canada and the US, are parties to the UCC.

These treaties give the citizens of each country that is a party to them reciprocal rights in the other member countries. In other words, an American author has the same copyright protection in Canada as a Canadian author does, and a Canadian author has the same copyright protection in the US as an American author does.

Of the two treaties, the Berne Convention is the more important. It’s the Berne Convention that makes copyright protection automatic. Because of the Berne Convention, any original creative work—including writing, music, art, computer programs, etc.—is copyrighted from the moment of creation, that is, the moment it is set down in a fixed form, e.g. on paper, disk, audio- or videotape, canvas, etc.

There are two caveats to automatic protection, both of which are understandable:

The creative work has to be “fixed,” i.e. saved in some way. Reciting the epic poem you wrote in your head on the ascent of Mt. Everest as you stand on the peak with only the sun and the snow as witnesses wouldn’t copyright it. Reciting it into the digital recorder you just happened to have tucked in the inside pocket of your parka in case inspiration struck, would.

It has to be original. Shouting the words to the Tennyson poem you memorized while trapped in a snow cave for three days would not give you copyright in Tennyson’s words. (However, if your performance—intonations, gestures, movements, etc.—of the poem was sufficiently original, and it was fixed in some way, let’s say on your climbing partner’s cell phone, then you would have a copyright in your performance of the poem.)

Because of the Berne Convention, your work does not need to be published for it to be copyrighted; unpublished work has the same copyright protection as published work. In fact, even work you have no intention of ever publishing, such as personal letters or e-mails, is copyrighted. Further, you do not need to display a copyright notice or register your work with a copyright office.

I believe the misconception that you have to “do something” to “get” copyright persists because the US didn’t become a party to the Berne Convention until 1989 (Canada has been a party since 1928). Prior to that, the US only belonged to the UCC, and that treaty requires notice with the © symbol in order for copyright to be secured, e.g. © 1946 Madeleine L’Engle or Copyright 1932 The New York Times. If you didn’t place a copyright notice on all copies of your work, you risked losing your copyright!

Since the US joined the Berne Convention, it is no longer necessary for those writing or publishing in the US to comply with the UCC’s formalities.

While you can still register works with your respective copyright office, there is no need to do so to obtain copyright. What registration does is make it easier to prove that the work is yours should you ever launch an infringement suit against someone. If you publish a book, the publisher will probably register your copyright for you. Since unpublished works sitting in your files are unlikely to be infringed, there is really no need to register them.

Similarly, while copyright notices are still very popular, they are not required to obtain copyright, and today are used as more of a courtesy—a quick, familiar way of letting readers know: “This is mine. Please don’t steal it.”

Speaking of stealing, what’s the difference between copyright infringement and plagiarism? Six of one, half-a-dozen of the other?

© Copyright Infringement vs. Plagiarism

Copyright infringement and plagiarism are similar and related. The difference is that infringement is a legal breach, while plagiarism is a moral one.

Copyright is a sole or exclusive right. That means that only the copyright owner has the right to say what can be done with a work. No one else has the right to do anything with your work—including publish it with full credit to you—without your permission. Note, however, that permission can be implicit as well as explicit. For example, if you submit an article or story to a magazine, it’s implied that you’re giving the publication permission to publish your work.

Plagiarism, on the other hand, is passing off someone else’s work as your own. Plagiarism can be intentional and blatant, e.g. placing one’s name on an essay someone else wrote without changing a single word in the text. More often, it’s unintentional or accidental, e.g. neglecting to credit a source or forgetting to place quotation marks around a quote. This is a particular danger when citing a number of different sources and working with copy & paste. Make sure to use care when doing so.

Of course, infringement and plagiarism overlap and it’s possible to both infringe copyright and plagiarize a work in a single instance. But it’s also possible to plagiarize a work, but not infringe copyright, if the plagiarized work is in the public domain (no longer copyrighted).

For example, if I wrote: “There was also a Beaver that paced on the deck or would sit making lace in the bow and had often (the Bellman said) saved them from wreck, though none of the sailors knew how.” without crediting Lewis Carroll, I’d be plagiarizing “The Hunting of the Snark.” I wouldn’t, however, be infringing copyright because the poem has long been in the public domain.

Additionally, it’s possible to infringe copyright without plagiarizing, for example, if you scanned the entire text of a copyrighted book and uploaded it to your web site, with full credit to the copyright owner(s), but without their permission. This wouldn’t be plagiarism, because you’re not passing it off as your own work, but it would be infringement, because posting the entire work could not be considered fair use / fair dealing.

Posting an entire book is an extreme example, but I’m sure everyone has seen lyrics posted online, whether it be at a dedicated lyrics site or on someone’s blog. Legally, anyone who does this—reprints an entire song—without asking permission first is infringing the songwriter’s copyright. On the other hand, quoting a line or even a verse, in the context of explaining why you like the song, would be acceptable.

Wait. So, how much of someone else’s work is it okay for me to use, and why?

© Fair Use and Fair Dealing

Most people are aware that it’s generally okay to quote a portion of another work in their own, as long as proper credit is given to the original author. If this wasn’t possible, it would make it extremely difficult for students to write essays and columnists to review books, amongst other things, because they would have to ask for permission to use each excerpt they quote in their piece.

In Canada, this doctrine is called “fair dealing” and in the US, it’s called “fair use.” It allows people to use “fair” portions of others’ work in some circumstances without infringing copyright. Fair dealing is limited to the purposes of research, private study, criticism, review, and news reporting. For criticism, review, or news reporting, the source and name of author must be mentioned. Fair use is a broader concept that allows for other uses; for example, parody is an accepted use in the US, but not in Canada. Fair use includes purposes “such as [emphasis added] criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.”

There is no set amount of text that is considered “fair.” If infringement is alleged, the court will decide if the use was fair based on the specific circumstances of the case. Factors Canadian courts will consider in determining fairness are the purpose, character, and amount of the dealing, the nature of the work, whether there are alternatives available, and what the effect is on the work used (See CCH Canadian v. Law Society of Upper Canada). In the US, factors are similar and include the purpose, character, and amount of the work used, as well as the nature of the work, and the effect of the use on the work (See 17 USC 107). Use your best judgment: quoting 200 words from a 100,000-word book is unlikely to be a problem. On the other hand, quoting 200 words from a 500-word essay might be.

If you’d like to use more of a work than you think is fair or if you’re not sure if the use you’re contemplating is fair and you’re concerned, you should ask the copyright owner for permission to use the work.

Permission? How do I go about that? How do I find out who owns the copyright?

© Assignments & Licenses

Finding the copyright owner is usually just a matter of knowing whom the author of a work is. Generally, the author of a work (the creator) is the first owner of the copyright. If two or more authors have created the work together, they are “joint authors” and all own the copyright together. (It’s worth keeping in mind that if you ever write anything jointly with another writer, you should ask his/her permission before you do anything with the work, including placing it on your personal web site.) So, in most cases, you would contact the writer or writers directly, let him/her/them know how you want to use the work, and ask for permission to do so (it gets a bit more complicated when the writer is deceased).

The main exception to this rule is where a work has been created in the course of employment. In the case of “works made for hire,” the employer, not the employee, is considered to be the author, and is therefore the copyright owner. So, if, for example, you write tech manuals at work, you couldn’t place those in your online writing portfolio without getting permission from your employer. If an employer is the owner of copyright, you’ll need to ask the company for permission, not the writer.

A copyright owner may assign or license his/her copyright in whole or in part, for the whole term of the copyright or a portion of the term. If you are granted an assignment or license to use a work, you may have to pay the copyright owner royalties (compensation for the use of the work).

An assignment is a transfer of all or part of your rights to another party. For example, you may have noticed when submitting that many publications will ask for “first serial rights,” meaning the right to be the first to publish the piece. This is a reasonable request. Beware if a publication asks for “all rights.” It means just what it sounds like. If you’re going to assign all your rights in a work to another party, make sure that you’re adequately compensated up front. Also, understand that if you give up all rights to a work to another party, you won’t be able to reproduce it yourself, so if you have an online portfolio, you wouldn’t be able to include it there.

One thing to note: for publications such as a newspapers and magazines that are compilations of articles, photographs, etc., the individual authors generally retain the copyright in their own work, while the publication has copyright in the compilation as a whole. This means that a magazine publisher has the right to reproduce an issue of the magazine in its entirety, without asking the authors of each individual component for permission. This is true even if the republication is in a different format than the original. For example, all of the issues of The New Yorker will soon be available on a set of DVDs, with each page rendered exactly as it originally appeared. (More sticky is the issue of whether such publications should be able to make individual articles available in databases without the writers’ permission.)

A license is permission for someone else to use your work for certain purposes and under certain conditions, i.e. there is no transfer of rights. Good examples are the Creative Commons licenses that are becoming popular with bloggers. These licenses allow creators to retain their copyright, while allowing everyone to use their work in certain ways, i.e. it’s a way of giving others permission to use your work up front. For example, a Creative Commons “Attribution-NonCommercial-NoDerivs” license means that anyone is permitted “to copy, distribute, display, and perform the work” for non-commercial purposes. However, they must give you credit (attribute the work to you) and they are not permitted to create derivative works based upon it. If you want to place some clips of your published work on your web site, this might be the license you choose.

I like that copyright protects my rights, but having to ask for permission to use others’ work all the time is a bit tedious. How long does copyright last anyhow?

© Duration of Copyright

The Berne Convention stipulates that the minimum term of copyright is life of the author plus 50 years (this is currently the term in Canada). Countries that are parties to the Convention may have longer terms of protection, but not shorter. In the US, for works created on or after January 1, 1978, the term of copyright is life of the author plus 70 years. (Note that how the duration of copyright is calculated for works with corporate owners or those where the author is unknown is different.)

All copyrights terminate at the end of the calendar year (i.e. December 31) regardless of what day the author actually died. In cases of joint authorship, the term is measured using the life of the author who dies last.

Because the duration of copyright varies from country to country (some countries have even longer terms of copyright than life + 70), works can be in the public domain in some countries, but not others. Take, for example, an author who died on April 16, 1954. His or her work entered the public domain in Canada on January 1, 2005. However, it won’t enter the public domain in a “life + 70” country until 2025.

If you’ve ever looked at one of the Gutenberg Project sites (sites that put public domain books online for free), you may have seen a note that says something like “not for US use” or “no US access” beside some of the book titles (See, for example: Warning! Restricted Access!). This indicates that the e-book is hosted in a country where it is no longer copyright-protected, but that it is still under copyright in the US.

The good thing about the “life plus” system is that all you have to know to figure out if a work is still copyrighted is 1) when the author died, and 2) what the duration of copyright is where you live. You can find this out by contacting the copyright office in your country (they probably have a web site); links to the Canadian and American copyright offices are below.

The old US system was more complicated. Prior to 1978, the duration of copyright was based on the publication date of the work. The first term of copyright was 28 years, and copyright could be renewed for a second term (total of 56 years). In 1978, the second term was extended to 47 years (total of 75 years), and in 1998, to 67 years (total of 95 years).

Works published before January 1, 1923, fell into the public domain before the end of 1997, so all works published in 1922 or earlier are in the public domain in the US.

If a work was published in 1923 or later, and the copyright notice was properly affixed (required until 1989) and the copyright renewed as necessary (required for works published until 1964), then that work will still be protected by copyright in the US. If you live in the US, or you’re writing for a US-based publication, it’s best to assume that anything published post-1922 is still under copyright until you investigate further. (See Circular 22 at the Copyright Office web site for information on how to investigate the copyright status of a work.)

The earliest date any new works will enter the public domain in the US is January 1, 2019 (with the possible exception of some never-published works). For a really clear breakdown of what is and isn’t in the public domain in the US, check out this chart: Copyright Term and the Public Domain in the United States.

That’s all really interesting, but I still have more questions.

© More Information

Canada
Copyright Office: A Guide to Copyrights
Copyright Act & Regulations

US:
US Copyright Office: Copyright Basics, FAQ
US Copyright Law & Code of Federal Regulations


Disclaimer: This article is intended for informational purposes only. It does not constitute legal advice. If you need legal advice, please consult a lawyer.

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