Copyright Issues for Digital Projects Image, Text, Sound & Technology: A Symposium on Digital Text Editing Carol Shepstone Head, Access Services Division University of Saskatchewan Library

2 Disclaimer  not a lawyer  not providing legal advice

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4 Overview  Canadian Copyright Act – short history  International Copyright Standards  Key definitions and concepts  Seeking permissions  Copyright for your project  Questions

5 Canadian Copyright Legislation  Copyright Act  1988 Bill C-60  (end of phase I reform)  1997 Bill C-32  (end of phase II reform)  current copyright reform

6 International Copyright Conventions  no international copyright legislation  conventions set minimum standards for member countries to use in legislation  Berne Convention, Universal Copyright Convention, Rome Convention, WIPO Digital Treaties  ensures authors are protected in other countries – must afford others same protection as citizens  international Trade Agreements also have impact on aspects of intellectual property and copyright

7 The Basics  copyright holders  protected rights  protected categories of work  general rules - duration  specific exceptions

8 Key Concepts  original creator or author of a work is the first owner of copyright (with some exceptions)  copyright is automatic, no registration is required in Canada  owning the item does not mean you own copyright  law does not distinguish between commercial and non-commercial uses  law of the country in which you are exploiting the work is the law that matters…if the countries have copyright relations

9 Copyright… more than just the “right to copy”  sole and exclusive right to control the use of the work and benefit from its exploitation  publish, produce, perform, convert, reproduce, communicate, adapt, translate, present, etc.

10 What is a Work?  expression of an idea  published or unpublished  criteria of a work  must be “fixed” in some form  originality  nationality of creator and place of publication

11 Protected Categories of Works  literary works  books, letters, pamphlets, s, memos, lectures, articles, translations, computer programs, tables of statistics  dramatic works  choreographic work, mime, recitation, acting form, scripts, plays  musical works  compositions, songs, sheet music, lyrics, arrangement or adaptation (not same as sound recordings)  artistic works  paintings, drawings, engravings, prints, photographs, handicrafts, architectural works, illustrations

12 Non-Traditional “Works”  Aka..”other subject- matter”  performers’ performances  can be live or “fixed”  sound recordings  music, drama, lectures, spoken- word, ocean waves  communications / broadcasts  radio and television

13 Some Other Types of Works  collective works  distinct parts by different authors  compilations  gathering of material from a variety of sources  new media projects, databases

14 Protected Rights  economic rights  moral rights  neighbouring rights

15 Economic Rights  author/creator is the first owner of copyright  duration  “general rule”- life of author +50 years (=public domain)  copyright can be held by or transferred to others  rights include: reproduction, public performance, publication, adaptation, translation, telecommunication to public, prohibit importation, right of authorization  rights of reproduction  ”substantial part” of work

16 Moral Rights  paternity  claim authorship; remain anonymous; use pseudonym  integrity  prevent changes to work and reputation  association  prevent work being used in conjunction with a cause or business  duration  life of author +50 years… and beyond – passes to heirs, even if not inherit copyright  can’t sell or transfer  can be waived in Canada

17 Neighbouring Rights  rights of performers and producers of sound recordings (and broadcasters)  control reproduction and re- broadcasting  duration  50 years following first “fixation” or broadcast

18 Layering of Rights examples  newspapers  photo of an piece of art  1945 sound recording

19 Duration of copyright general rule  life of author + 50 years = public domain  from end of calendar year of death, to end of the 50 th year -- January 1 st XXXX

20 Except in the case of…

21 Except in the case of… photographs  author is owner of negative or plate not necessarily photographer  author as a corporation  remainder of calendar year from point negative / plate made +50 years  commission photograph  copyright belongs to the person who commissioned work – provided they paid  general rule applies

22 Except in the case of… employees  work created by an employee in course of work then employer owns copyright  +50 years from time of creation

23 Except in the case of… unknown authors/creators  remainder of the calendar from time of publication +50 years  remainder of calendar year from time of making +75 years  which ever term ends first

24 Except in the case of… personal/ home movies  prior to January 1, 1994 author is the owner of the negative or video at time it was made  life of author +50 years  after January 1, 1994, person who created work  +50 years following year of publication dramatic cinematographic works  life of author +50 years  if not published, 50 years after creation

25 Except in the case of… posthumous works  unpublished in author’s lifetime  duration of copyright depends on date of creation (+50)  already made public since author’s death  year work first published +50  others, depend on when author died  1997 rule

26 Exceptions in the Act  fair dealing  substantial part of work  for educational institutions, libraries, museums and archives

27 Fair Dealing  may not need clearance when falls under terms of fair dealing  only applicable for purposes of private study or research, criticism or review (source and name of author are properly attributed)  use of “substantial portion” of the work not fair dealing

28 “Substantial Part”  permission for reproduction or copying required only for a “substantial part” of work  Courts consider…  quantity  how much of the original work  quality  the “importance” of the part copied

29 Exceptions  Act provides exceptions exist for educational institutions, libraries, museums, archives  related to carrying out the daily business of the institution  single copies  individual study and research  management of collections

30 Digital Projects Where to start?

31 Copyright and New Media  “new media” employs digital technology to include elements of graphics, text, video, sound, still images, data, and others into a single work  complex process for obtaining copyright permissions

32  often incorporate existing works  complex layering of rights  moral rights may be a concern  licencing costs unknown and without guidelines  more creator concern about losing control when digital technologies involved  may require “international” permissions, both for content and distribution

33 Checklist for Permissions  Are you using a work or other subject-matter protected by copyright?  Is the duration of copyright still running or is it in the public domain?  Is it an adaptation or translation of a public domain piece?  Are you using a substantial portion of that work or other subject- matter?  Are you using it in the copyright sense by reproducing it, perhaps electronically, performing it in public, adapting it broadcasting it, etc.?  Is there an exception in the law that permits you to use that work or other subject-matter without obtaining permission?  Are you modifying the work in a manner that may be prejudicial to the honour or reputation of the creator?  Does the author’s name appear in association with the work? Taken from: Harris, Lesley Ellen Canadian Copyright Law: The Indispensable guide for Publishers, Web Professionals, Writers, Artists, Filmmakers, Teachers, Librarians, Archivists, Curators, Lawyer, and Business People.

34 Who to Ask  author/creator  other holder of copyright – publisher, corporate body  anyone with neighbouring rights  watch for contractual agreements  contact appropriate collectives  SOCAN, AccessCopyright, etc.  check the copyright register  Intellectual Property Office  if can’t locate….  Canadian Copyright Board

35 Securing Authorization  put it in writing  describe the work you are creating  identify the part of the work you want to exploit  ultimate purpose of work (educational CD-rom, website)  indicate amount of work to use in relationship to larger whole  type of distribution (Internet, CD, etc.)  size of run, number of site visits, etc.  why they should authorize use  put it in writing (contract)

36 Copyright for your works  Copyright in Canada is automatic  © not required but recommended as a reminder  mark provided under Universal Copyright Convention and will provide protection in those countries that are members  Intellectual Property Office for registration

37 Recommended Guides Daniel, Johanne. A Practical Guide on Copyright Clearance for New Media Producers ci/pubs/copymm_e.htm Harris, Lesley Ellen Canadian Copyright Law: The Indispensable Guide for Publishers, Web Professionals, Writers, Artists, Filmmakers, Teachers, Librarians, Archivists, Curators, Lawyers and Business People. 3 rd Edition

38 Contacts  Canadian Copyright Act   Canadian Intellectual Property Office  register of copyright  aboutus-e.html aboutus-e.html  Canadian Copyright Board  can grant licence in absence of holders   Canadian Heritage 

39  World Intellectual Property Organization   World Trade Organization 

40 Select Canadian Collectives  AccessCopyright   The Canadian Musical Reproduction Rights Agency Limited (CMRRA)   Society of Composers, Authors and Music Publishers (SOCAN)   Société québécoise de gestion collective des droits de reproduction (COPIBEC) 

41 Questions? Photo credits: United States Coast Guard International Ice Patrol area/iip/