Common Misconceptions about Copyright - LawNow Magazine

Common Misconceptions about Copyright

copyright symbol with question marksAs an intellectual property lawyer, I am often consulted by creators of works protected by copyright. Here are five of the most common misconceptions I have encountered in my practice, and my comments on them:

If a work is not marked with the © claim, it is not protected:

Annotation of the copyright claim is not required by the Canadian Copyright Act. Rather, the word “copyright” or the © marking is required by the Universal Copyright Convention, followed by the year of publication (or if not published, the year of creation) and the name of the owner. Canada belongs to this Convention, as well as to the Berne Copyright Convention, which does not require the marking.

Until recently, the United States was a member of the Universal Copyright Convention, but not the Berne Convention, and so use of the copyright claim was necessary to protect works that would be published in a U.S. market. Now that the U.S. has joined Berne, the use of the copyright claim or © marking for U.S.-destined works is not imperative.

Even if not required, however, the © annotation is useful in that it serves as a well-recognized notice to all that the work is copyright-protected.

If a work is not protected under the Copyright Act, it is not protected:

Copyright in a work arises not by virtue of registering it, but rather by virtue of creating a fixed work, provided that the creator was a citizen of Canada, or of another country which belongs to the same international conventions to which Canada belongs (Berne, Universal, etc.), or of any country to which the federal government has extended protection. Therefore in Canada, copyright registration is not mandatory to the enjoyment of copyright by a creator.

However, one significant advantage to copyright registration is that it can greatly assist a creator in cases of copyright infringement. The Certificate of Registration is proof in a court of law that copyright subsists in a work, and that the named owner owns that copyright. Submission of the Certificate of Copyright registration in court creates a rebuttable reverse onus of proof, which is highly useful in an infringement claim. A creator can register copyright in his or her work by filing either a paper document (government fee = $65), or an electronic one (government fee = $50). For more information, and to click through the application process, visit the federal government website, www.cipo.ic.gc.ca. Unlike the U.S. Copyright Office, no copy of the subject work is to be submitted with the application to the Canadian Copyright Office.

Copyright protects ideas:

In fact, copyright only protects the expression of the ideas, not the ideas themselves. Here is a partial list of what is not covered by copyright, apart from ideas: titles, themes, catch-phrases, names, short word combinations, slogans, short phrases, methods (e.g. a method of teaching), plots or characters, and factual information. Facts, ideas and news are all considered part of the “public domain”, i.e. they are everyone’s property and may be used freely by all.

Once you sell the copyright in your “work” you lose all control over it:

Unless he or she has waived them, a creator still has certain rights in respect of the work, called “moral rights.” There are three types of moral rights:

  1. The right to prevent distortion, mutilation, or other modification of a work that is prejudicial to the honour or reputation of the creator, even if another person owns the copyright in the work;
  2. The right of the creator to have his or her name associated with the work, or to remain anonymous;
  3. The right of a creator to prevent his or her work from being associated with a product, service, cause or institution in a way that is prejudicial to the honour or reputation of the creator, without his or her permission.

Unlike copyright, moral rights cannot be assigned. However, moral rights can be waived.

Up to 10% of a work can be taken without risking an infringement action:

Copyright is deemed to be infringed by any person who, without the copyright owner’s consent, does anything that only the owner has the right to do. Taking a “substantial part” of a work is one type of infringement. What constitutes the taking of a substantial part of a work is different depending upon the type of work in question. There are no hard and fast rules about the number of words, the percentages of text, or the like. For example, the lyrics and melody of a short refrain in a song may constitute far less than 10% of the musical work, but the taking of it without consent could well constitute infringement. In short, whether the taking is substantial is a matter for courts to determine on a case-by-case basis.

The foregoing are general comments only. For an analysis applying the law to any specific fact situation, it is critical to consult a lawyer.

 

This article was originally published in the Nov/Dec 2012 issue of WestWord Magazine, a publication of the Writer’s Guild of Alberta and is reprinted with the permission of the author.

 

 

Authors:

Jeananne Kathol Kirwin
Jeananne Kathol Kirwin (B.A. English, Yale; J.D., U of Toronto) is an intellectual property lawyer of 25+ years, as well as the award-winning author of Greetings from Cool Breezes (2005, Borealis Press). Her non-fiction (and occasional poetry) appear in various publications. Jeananne is the current president of Canadian Authors Association - Alberta Branch, and the editor of the Canadian Intellectual Property Review (an intellectual property law journal). As part of her IP practice, she regularly advises authors regarding copyright and publishing contracts.
 


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