canadian copyright law: a primer

Canadian Copyright Law: A Primer

Lorraine M. Fleck Web Design Graduate Cer9ficate Course

Sheridan Ins9tute of Technology and Advanced Learning

March 9, 2012

These slides do not cons9tute legal advice.

Overview I.   Canadian Copyright Law Primer 1.  What is copyright? 2.  What does copyright protect? 3.  How is copyright created? 4.  How long does copyright exist? 5.  Who owns copyright? 6.  Who can use copyright materials?

Overview I.   Canadian Copyright Law Primer 6.  What is copyright infringement? Are there

excep9ons? 7.  What are “moral rights”? 8.  What are some of the highlights of the

Canadian copyright reform bill (Bill C-‐11) relevant to your work?

II.  Ques<ons?

Canadian Copyright Law Primer

What is Copyright? The exclusive right to reproduce original content and stop others from reproducing that content. §  Means that you must get others permission

to use their content unless your ac9vity falls within an excep9on to infringement.

§  Applies to the Internet! §  The laws in Canada and the US can differ

drama9cally.

What Does Copyright Protect? Original literary, drama9c, musical and ar9s9c works. §  Literary works include books, pamphlets,

magazines, newspapers, tables, computer programs, compila9ons of literary works.

§  Drama9c works include choreography, wri^en music, movies and musical plays.

What Does Copyright Protect? §  Audible musical works include music with or

without words. §  Ar9s9c works include pain9ngs, drawings,

maps, charts, plans, photos, engravings, sculpture, cra_s and architectural works such as buildings, sculptures and models.

How is Copyright Created? §  The original work is created by a Canadian

ci9zen or ci9zen of a Berne Conven)on country.

§  The work must come into physical existence; copyright does not exist in ideas.

§  If the work is published, the work is published in Canada or a Berne Conven)on country.

How is Copyright Created? §  No need to register or mark (e.g. © 2012,

Lorraine M. Fleck). §  Registra9on is a rebu^able assump9on of

copyright that can be useful for li9ga9on purposes.

§  Best to register early; Canadian courts are skep9cal of registra9ons obtained shortly before or during a lawsuit.

How Long Does Copyright Exist? Depends on the type of work and whether there are joint authors. For e.g.: §  Most works = Life of the author + Rest of the

calendar year in which the author died + 50 years §  Joint authors = Term lasts to the end of the 50th

year of the last author dies §  Unknown author = Lesser of the end of the 50th

year a_er publica9on OR 75 years a_er the work was made

How Long Does Copyright Exist? §  Photographs = To the end of the 50th year from the

making of the ini9al nega9ve §  Movies = To the end of the 50th year from first

publica9on and if not published, 50 years from the making of the movie

§  Sound recordings = 50 years from when first recorded

§  Broadcasters = 50 years from communica9on

Who Owns Copyright? Usually the person who creates the copyright work but there are excep9ons. §  Photographs: The first person who owns the

nega9ve of the photo (not always the photographer).

§  Employees: Employers are the first owner of works created for the employer by the employee.

Who Can Use Copyright Materials? §  The owner. Ownership can be transferred, but

must be in wri9ng. The ownership transfer agreement usually is called an “assignment’.

§  Anyone who has permission (“license”). The terms of the license dictate what the “licensee” can do under the license. The fee paid under the license to the copyright owner (“licensor”) is a “royalty”.

Who Can Use Copyright Materials? Be careful with “royalty free” content! §  Each site has its owns terms governing content use. §  Many sites only allow non-‐commercial use. §  Commercial licenses are o_en restricted e.g.

number of copies, territory. §  Read license terms carefully. §  Know how the content will be used before

purchasing a license to avoid wasted $$$.

What is Copyright Infringement? §  The making of an unauthorized copy. §  There must be a “substan9al” por9on of the

material copied. §  No hard and fast rule as to what is

substan9al. §  Test is quality, not quan9ty: Does the copy

take enough of the work so as to convey at least a por9on of the value of the work?

What is Copyright Infringement? §  Two types:

1.  Primary: A copy is made without permission (e.g. copying a most of a magazine ar9cle, pirated so_ware).

2.  Secondary: The sale, rental or distribu9on, or display or possession for that purpose, of an unauthorized copy provided the person in possession of the copy knows it was an infringing copy (e.g. bootleg DVD stores, file sharing).

Are There Excep<ons to Copyright Infringement?

§  Yes, but under specific circumstances. §  Major category is “fair dealing”:

1.  Research/private study. 2.  Cri9cism/review. 3.  News repor9ng.

§  While not limited to private or non-‐commercial contexts, not very useful for adver9sers. No adver9sing specific excep9on.

§  Parody is NOT currently an excep9on in Canada.

Are There Excep<ons to Copyright Infringement?

§  What factors are used to assess what is “fair” in the context of “fair dealing”? 1.  Purpose. 2.  Character. 3.  Amount. 4.  Nature (of the work). 5.  Available alterna9ves. 6.  Effect (of the dealing on the work).

What Are Moral Rights? §  The author’s right to:

1.  Retain the integrity of the work; 2.  Not have her/his work distorted; 3.  Have his/her name associated or not

associated with the work. §  Ac9vi9es must be shown to be to the

detriment of author’s honour/reputa9on.

What Are Moral Rights?

§  Cannot be transferred, but can be waived.

§  Can prevent you from altering content or prevent your content from being altered, unless there is a waiver.

§  Term is the same as copyright in the work.

Bill C-‐11 Highlights §  The Copyright Moderniza)on Act is the fourth

a^empt at reform since 2005. §  Canada’s copyright act has not been significantly

amended since 1997. §  Some of the significant changes that affect those in

web design and adver9sing include: 1.  The “mash-‐up” excep9on. 2.  Changes in statutory damages. 3.  Excep9ons for parody and sa9re.

Bill C-‐11 Highlights: Mash-‐Ups §  Infringement excep9on for non-‐commercial

user generated content created using copyright material legi9mately obtained by the creator.

§  Applies to non-‐commercial uses only. §  Could affect the market for the works used to

create the mash up (e.g. transla9ons, sequels).

Bill C-‐11 Highlights: Statutory Damages §  Would cap statutory damages against

individuals who infringe copyright for non-‐commercial purposes to $100 – $5,000 for all works in the lawsuit.

§  Currently, statutory damages are $500 -‐ $20,000 per copy.

§  May result in less deterrence for large scale infringers.

Bill C-‐11 Highlights: Parody & Sa<re §  Most relevant for web design and adver9sing. §  Parody: The original work is ridiculed. §  Sa9re: Use of the original work to mock

someone else. §  No need to iden9fy source/author as for

cri9cism/review and news repor9ng.

Bill C-‐11 Highlights: Parody & Sa<re §  While parody and sa9re excep9ons will give those in

adver9sing such as web designers more tools to create content, s9ll need to be careful.

§  Parody and sa9re may infringe trade-‐marks, result in defama9on.

§  Use of content must be “fair”: do not use too much, and avoid impac9ng exis9ng opportuni9es for content owner to exploit copyright.

Ques<ons

Ques<on 1 Q: Can you use a copyrighted image if the image is no longer recognizable? A: Depends. No if the altera9on impacts the ability of the copyright owner to exploit the work. Even if that is not the case, if the distor9on nega9vely affects the creator’s honour/reputa9on, then no because the distor9on would affect the author’s moral rights.

Ques<on 2 Q: What happens if you are accused of using copyrighted material? What are some of the consequences and how should you approach resolving this maêr? A: Usually, the plain9ff’s lawyer will send a demand leêr. If the maêr cannot be resolved at that stage, the copyright owner may sue. The limita9on period is three (3) years. Criminal proceedings are also available, but rare.

Ques<on 2 (con<nued) A: Remedies for copyright infringement include: 1.  An injunc9on. The only available remedy if an

infringer can prove (s)he/it had not reasonable basis for knowing copyright existed/was infringed).

2.  Damages and profits or statutory damages (currently $500 to $20,000 per copy).

3.  Interest, puni9ve and/or exemplary damages, “delivery up” of infringing materials and “costs” (payment of plain9ff’s legal fees).

Ques<on 2 (con<nued) A: A copyright dispute can be very expensive money and 9me wise, with each party’s legal fees easily exceeding $100,000 or more, and a lawsuit in Federal Court currently taking two (2) years to reach judgement. Proceedings in Ontario Superior Court can take considerably longer to go to trial.

Ques<on 2 (con<nued) A: What approach to take depends on the facts (e.g. whether there is copyright in the work allegedly being infringed). While many are hesitant to do so because of the cost, it o_en is cheaper and in a party’s best interest to hire a lawyer who has experience with copyright disputes to assess whether there is a claim and to develop an ac9on plan (e.g. whether to send a demand le^er, whether to se^le a dispute – which is o_en cheaper).

Ques<on 3 Q: When blogging about other people's work (i.e. photos from magazines, illustra9ons, etc.) and wan9ng to post images we find online, is there a hard and fast rule about how we should credit the original author? What should we be wary of when doing this?

Ques<on 3 (con<nued) A: OK if doing for cri9cism/review or news repor9ng provided you credit the author by men9oning:

1.  the source; and 2.  if given in the source, the name of the:

a.  author, in the case of a work; b.  performer, in the case of a sound recording; or c.  broadcaster, in the case of a communica9on signal.

Otherwise, an infringement even if the author is men9oned and the above informa9on is provided.

Ques<on 4 Q: How can we best protect our own work that we post online that might get picked up by other people? A: Some 9ps. §  Disable right clicks (but will not work with the tech savy). §  While not legally required, copyright no9ces and website

terms of use on your own sites can be a deterrent. §  Register copyright in commercially important works that

might get infringed so you have your registra9on in advance of li9ga9on.

Ques<on 5 Q: What exactly are the ownership rules of the social media/blog sites that we use all the 9me (i.e. Facebook, Twi^er, Wordpress)? We never read the fine print or if we do we don’t understand it. What should we look for and be aware of to protect our crea9ve rights. A: As of wri9ng: §  You own your content on Twi^er and Wordpress. §  Facebook has a license to all your content un9l your account

is deleted, unless any content is shared with friends. §  Pinterest has a perpetual, worldwide license to your content.

Ques<on 5 (con<nued) A: Fine print may be boring, but you have to read each website’s terms of use to determine what rights, if any, you are giving the service provider in respect of your content. Given that each service provider’s terms of use vary, you have to read the en9re document to appreciate what you are getng into. There are unfortunately no shortcuts.

Ques<on 6 Q: I have a few older design projects from school where I don't know where I found the images, and they are currently online. If I wrote a sentence saying it is student work, is this enough? A. Unfortunately, no. There is no copyright infringement excep9on in that case.

Ques<on 7 Q: I have a piece in my poruolio that was created using a collage of images from magazines, and then manipulated in photoshop. Can I s9ll have this piece in my poruolio as student work even if I don't have the copyright of the magazine images? A. Unfortunately, no, unless the collage relates to cri9cism/review and the author a^ribu9on informa9on in ques9on 3 is included. Otherwise, it is copyright, and poten9ally, moral rights infringement as well.

Ques<on 7 Q: I have a piece in my poruolio that was created using a collage of images from magazines, and then manipulated in Photoshop. Can I s9ll have this piece in my poruolio as student work even if I don't have the copyright of the magazine images? A. Unfortunately, no, unless the collage relates to cri9cism/review and the author a^ribu9on informa9on in ques9on 3 is included. Otherwise, it is copyright, and poten9ally, moral rights infringement as well.

Ques<on 8 Q: Many companies (i.e. ad agencies, marke9ng & communica9ons firms) and ins9tu9ons are encouraging, even requiring, their employees to tweet, blog etc., to promote their brands. Who is responsible if an inappropriate or defamatory tweet goes out over one of these "official" feeds -‐ the employer or the employee?

Ques<on 8 A: It depends. §  Employers may be liable for representa9ons made in the

“scope of employment”. §  Statements made on an employee’s personal 9me/account

may be a^ributed to employer. §  But the employee may be liable if the ac9vity was not

authorized. Cri9cal to have policies in place – and a paper trail showing what content was authorized – to protect employees and employers.

Ques<on 9 Q: True story: employees of one such company have recently been reprimanded (or more) for things they have wri^en or images that have appeared in their personal blogs, Facebook or Twi^er accounts. Example: Marke9ng person, who works for an agency that has a major beer company as a client, posts a picture taken at a birthday party in a bar one night. The bo^les of beer on the table in this picture are not the client's brand. How much control does your employer legally have over your social media life outside of the office?

Ques<on 9 A: From a labour and employment lawyer… §  If non-‐union employee, more control than you think.

§  If your outside of work ac9vi9es nega9vely impact the business, can lead to dismissal. But how likely that the photos would nega9vely impact the business in this case?

Ques<on 9 A: §  Ul9mately, in this case, would need to prove that you were construc9vely dismissed and sue for construc9ve dismissal – which would require quitng your job. Li9ga9on is expensive and no guarantee you would win.

Canadian Copyright Law: A Primer

Lorraine M. Fleck Web Design Graduate Cer9ficate Course

Sheridan Ins9tute of Technology and Advanced Learning

March 9, 2012

These slides do not cons9tute legal advice.

canadian copyright law: a primer

Technology

copyright materials

copyright infringement

canadian copyright law

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advanced learning

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moral rights