Copyright law is hard.
A few weeks ago we had the opportunity to have a chat with copyright lawyer named
Lorraine Fleck. I am really glad that she took the time to come and talk to us about how copyright law works and how we as designers can protect ourselves from both accidentally using someones works without consent and how we can make sure the same doesn’t happen to us.
So, what is Copyright Law?
I’m going to break it down for you below using my notes and the information from Lorraine’s presentation (slide show) to be the most accurate I can be.
What is copyright?
- Copyright gives the author the exclusive right to reproduce and/or use his or her work.
- It prevents any unauthorized copying of the authors works.
Important Note that the copying of the authors work doesn’t have to be complete, it can be a partial copying of the works as well. As long as there is a significant amount of the work copied the law still remains.
Does not prevent independent creation of similar, or even identical, work.
The requirement: The works must be original and be physically recorded, stored or fixed for at least a instant in time (fixation).
So in a nutshell, you must get the authors permission to use their content unless what you are doing falls within an exception to infringement. Copyright isn’t limited to just physical works it also applies to the internet.
Don’t forget, the laws in Canada are not the same as US laws so make sure that you are aware of both to protect yourself.
What does copyright protect?
- Copyright protects a lot of different areas including:
- Literary Works: from Shakespeare to some lists.
- Artistic Works: from the Mona Lisa to the Chrysler Building.
- Software: like the source code.
- Copyright does not effect the idea it will protect the expression of the idea.
- Copyright does not effect “functional works” like the layout of the controls on a DVD player.
How is Copyright Created?
- The original work must be created by a Canadian Citizen or a citizen of a Berne Convention Country().
- The work must exist it cannot just be an idea because copyright does not apply to ideas.
- If it has been published it must be published in Canada or a Berne Convention Country.
- There isn’t a need to mark or register the works (ie: © Samantha Gilbert 2016)
- Registration could be used if you needed to fight for you works ownership.
- You should register early that way you can’t be question a court if a dispute is happing on the basis of you registering only a few days before the dispute.
How long does Copyright last?
- Copyright lasts for a long time. Usually its the authors lifetime plus 50 years (in some cases this could be longer)
- It is dependant on the type of work it is and if it has been co-authored. If the works are co-authored the term will last 50 years after the last author has died. If the author is unknown, it could be the lesser of 50th year after it was published or 75 years after the work was created.
Who owns the Copyright?
- In most cases it will be the author of the created works. But there are some exceptions:
- If you are an employee of a company the employer is the owner of any works created for that company.
- If you are a photographer you own the works unless there is a written agreement to the party.
Who can use the Copyright materials?
- The owner of the copyright plain and simple. You can transfer the ownership but you must make sure that the transfer is in writing this is in most cases called an “assignment”.
- Anyone who has permission this would be a license. The license will also dictate what the holder is able to do with the works under the license. A fee that is paid under the license is called a “royalty”.
- You have to be careful of royalty free content.
Precautions with Royalty Free Content:
Sometimes works may be acquired and put on these sites with the incorrect license or no license at all. Leaving the buyer in a sticky situation.
- Each website will have its own terms when it comes to its content.
- Sometimes you will only be allowed to use the works in a non commercial environment.
- Commercial licenses may be limited to a total number of times it can be run in a publication.
The big thing to do when using royalty free content is to thoroughly read and understand the terms and know what you will be acquiring the content for.
What is copyright infringement?
- Taking the original works of someone else and copying it or using it without written permission to do so.
- There has to be a substantial use of the material for it to be classified as infringement, but there is no black and white rule when it comes to this.
- To test if there is dispute you must think “Does the copy take enough of the work
so as to convey at least a portion of the value of the work?”
- There can be differences within the work, but if a large enough portion of the work is copied the differences will not be enough to argue that is in fact not a copy.
- There are two types of infringement:
Primary: A copy is made without permission (e.g. copying a most of a magazine article, pirated software).
Secondary: The sale, rental or distribution, 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).
The costs of copyright can be big.
A wronged party can choose to seek reimbursement for damages, profits made or statutory damages.
Statutory damages fees in non commercial could be $100 to $5000 per work.
Statutory damages fees in commercial could be $500 to $20000 per work.
Are there exceptions?
- In some cases yes, but there will be specific circumstances.
- Any major category like: satire, parody, other (research, review, news reporting)
- Be careful of parody and satire though because these could result in
- Be careful of parody and satire though because these could result in
- Beware the “Youtube Exception”: unique user generated content provision that establishes a legal safe harbour for creators of non-commercial user generated content such as remixed music, mashup videos, or home movies with commercial music in the background. Not limited to videos.
Are there moral rights?
- The author has a right to: retain the integrity of the work, not have it distorted, have their name either associated or not associated with the work.
- If the works is detrimental to the original owners honour or reputation.
- Moral rights can be waived but not transferred.
- The term is the same as the copyright work.
What has bill C-11 done for us?
Photographers now own copyright in their photos unless otherwise stated (this is awesome!)
So the above in a nutshell adapted and taken from the slides provided is how the basics of copyright works. I believe having an understanding of these rules are very important as a designer. There were many facts listed that I just assumed I understood but upon further reading and discussion realized I didn’t. This talk was invaluable to us.
After the presentation Lorraine addressed some student questions, here they are below:
What really are “non disclosure agreements”?
Invention; in the process of patenting it; trade secrets; I’m giving you confidential agreement and you cannot speak about it.
Prevents the “manufacturer” from taking confidential information from you and using it in their own works.
How do we protect our intellectual rights, since Canada does not have registration system for copy-right, like US should we register with the US system to?
Canada has a registration system.
We don’t need a image of product to register.
You don’t have to register with US if you are registered in Canada.
Patens are registered rights.
You should register trademarks to protect your reputation (national right).
Trade secrets apply in tech space; (also food); you have to insure keeping your secrets secret.
What about ending a relationship with a client (freelance), safe and legal way (ending a contract)
Always have your contracts in writing.
You need a road map to get out if it.
Paper everything, think of the consequences.
Termination provisions; if confidence info its required to be confidence after termination; payment.
Terminate within 30 days notice (could be great).
“Sit down and be a worrywart” think about what could go wrong in your situation.
A customer can get out of the contract if they have registered online within 10 days if they don’t have a copy of the contract.
CASL we are in a grace period; be careful in situations our system is “opt-in”.
Website to register for trademarks, do you have to have a lawyer?
gc.ca; don’t need a lawyer – but an agent; trademark specific!
Usually the dates will get you in filing and you will be able to challenge application on those basis.
Fee online is $250 application/registration fee.
Online portfolios; original art work, publishing online on a date, or each individual project, spend money? How do we protect our work?
2 ways; metadata in the file.
Email it to yourself for date proof – include date in email.
If you can prove you were there first you may be okay.
If working in teams of people and work looks off – challenge them.
Limited rights buyout – How does it work?
You can tailor a deal to your circumstances.
If you only want to cough up rights to specific parts of a contract that’s okay but beware.
Keep a schedule of dates to make sure you have something to back you up.
You’ve done a website and you want to showcase it on your portfolio?
Depends on contract, maybe you’ve done the work and they own it but you are able to showcase your work.
Get this up front.
Trademark and registration what’s the difference?
ACME when it is not a registered trademark ™ not registered in Canada.
ACME ® Registered in Canada/but not in the United States (registered has higher control than in Canada).
ACME for both sides of the border ™ is what you use.
How to get in contact with Lorraine
Company Website: http://www.fleckchumak.com/