Today's speaker was Lorraine M. fleck, a specialized copyright lawyer who has been working in the industry for a long time. Her lecture about copyright issues was very informative.
WHAT IS COPYRIGHT?
- The exclusive right to reproduce original content and stop others from reproducing that content.
- Which means that you must get the owners' permission to use their content unless your activity falls within an exception to infringement.
- Applies to the internet!
- The laws in Canada and US can differ dramatically.
WHAT DOES COPYRIGHT PROTECT?
- Original literary, dramatic, musical and artistic works.
- Literary work includes books.
- Music.
- Audio recordings, sound effects.
- Artistic works, painting, drowsing, charts, plans, photos, engravings, sculpture, crafts and models, building.
HOW IS COPYRIGHT CREATED?
- The original work is created by a Canadian citizen or citizen of the Berne Convention 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 Convention country.
- No need to register or mark (2012, Lorraine M. Fleck).
- Registration is a rebuttable assumption of copyright that can be useful for litigation purposes.
- Best to register early, Canadian courts are skeptical of registrations obtained shortly before or during a lawsuit.
HOW LONG DOES COPYRIGHT EXIST?
Depending on types of work and whether there are joint authors:
- Most Works: Life of the author + Rest of the calendar year in which the author died + 50 years
- Joint Authors: Terms last to the end of the 50 years of the last author dies
- Unknown Author: Lesser of the end of the 50th year after publication or 75 years after work was made
- Photographs: To the end of the 50 years from the making of the initial negative
- Movies: To the end of the 50 years from first publication if not published, 50 years from the making of movie
- Sound Recordings: 50 yeas from when first recorded
- Broadcasters: 50 years from communication
WHO OWNS COPYRIGHT?
Usually the person who creates the copyright work but there are exceptions.
- Photographs: the first person who owns the negative of the photo (not always the photographers)
- Employees: employers are the first owner of works created for the employer by the employee.
- The Owner: ownership can be transferred, but must be in writing. 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 often 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 "substantial" portion of the materials copied.
- No hard and fast rule as to what is substantial.
- Test is quality, not quantity: does the copy take enough of the work so as to convey at least a portion of the value of the work.
- Two types:
- 1. Primary: a copy is made without permission (e.g. copying a most of a magazine article, pirated software)
- 2. 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).
- Yes, but under specific circumstances.
- Major category is "fair dealing".
- 1. Research/private study
- 2. Criticism/review
- 3. News reporting
- While not limited to private or non-commercial contexts, not very useful for advertisers. no advertising specific exception.
- Parody is not currently an exception in Canada.
ARE THERE EXCEPTIONS TO COPYRIGHT INFRINGEMENT?
- What factors are used to assess what is "fair" in the context of "fair dealing"?
- Purpose
- Character
- Amount
- Nature of the work
- Available alternatives
- Effect in dealing on the work
BILL C-11 HIGHLIGHTS
- The copyright modernization act is the fourth attempt at reform since 2005
- Canada's copyright act has not been significantly amended since 1997.
- Infringement exception for non-commercial user generated content created using copyright materials legitimately obtained by the creator.
- Applied to non-commercial uses only
- Could affect the market for the works used to create the mash up (translations, sequels)
- Would cap statutory damages against individuals who infringe copyright for non-commercial purposes to $100 to $5000 for all works in the lawsuit.
- most relevant for web design and advertising.
- Parody: the original work is ridiculed.
- Satire: use of the original work to mock someone else.
- While parody and satire exceptions will give those in advertising such as web designers more tools to create content, still need to be careful.
- Parody and satire may infringe trade-marks, result in defamation.
- Use of content must be "fair": do not use too much, and avoid impacting existing opportunities for content owner to exploit copyright.
- No need to identify source/author as for criticism/review and news reporting.
- Currently, statutory damages are $500- $20,000 per copy.
- May result in less deterrence for large scale infringers.
- Some of the significant changes that affect those in web design and advertising includes:
- The "mash-up" exception.
- Changes in statutory damage
- Exceptions for parody and satire.
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
- Activities must be shown to be to the detriment of author's honour/reputation.
- Can not be transferred, but can be waived.
- can prevent you from altering content or prevent your content from being altered, unless there's a waiver.
- Term is the same as copyright in the work
QUESTION 1
- Can you use a copyright image if the image is no longer recognizable?
- Depends. No if the alternation impacts the ability of the copyright owner to exploit the work. Even if that is not the case, if the distortion negatively affects the creator's honour/reputation, then no because the distortion would affect the author's moral right.
- What happens if you are accused of using copyrighted materials? what are some of the consequences and how should you approach resolving this matters?
- Usually, the plaintiff's lawyer will send a demand letter. If the matter can not be resolved at that stage, the copyright owner may sue. The limitation period is 3 years. Criminal proceedings are also available, but rare.
- A copyright dispute can be very expensive money and time wise, with each party's legal fees easily exceeding $ 100.000 or more, and lawsuit in federal court currently taking 2 years to reach judgement. proceedings in Ontario superior court can take considerably longer to go to trial.
- What approach to take depends on the facts (whether there is copyright in the work allegedly being infringed). While many are hesitant to do so because of the cost, it often is cheaper and in a party's best interest to hire a lawyer who has experience with copyright disputes to assess whether there's a claim and to develop an action plan.
- When blogging about other people's work (like photos from magazines, illustrations, etc) and wanting to post images we find online, is there a hard an fast rules about how we should credit the original authors? what should we be wary of when doing this?
- Okay if doing for criticism/review or news reporting provided you credit the author by mentioning:
- The source and
- If given in the source, the name of the authors, in the case of a work, performer, in the case of a sound recording or broadcaster , in the case of a communication signal.
- Otherwise, an infringement even if the author is mentioned and the above information is provided.
- How can we best protect our own work that we post online that might get picked up by other people?
- Some tips:
- Disable right click (but will not work with the tech savvy).
- While not legally required, copyright notices and website terms of use on your own sites can be deterrent.
- Register copyright in commercially important works that might get infringed so you have your registration in advance of litigation.
- What exactly are the ownership rules of the social media/blog sites that we use all the time (i,e. Facebook, twitter, word press)? 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 creative right?
- As of writing:
- You own your content on twitter and work press.
- Facebook has a license to all your content until your account is deleted, unless any content is shared with friends.
- Pinterest has a perpetual, world wide license to your content.
- 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 provide in respect of your content.
- Giving that each service provider's terms of use vary, you have to read the entire document to appreciate what you are getting into. there are unfortunately no short cuts.
- 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?
- Unfortunately, no. There is no copyright infringement exception in that case.
- I have a piece in my portfolio that was created using a collage of images from magazines, and then manipulated in Photoshop. Can I still have this piece in my portfolio as student work even if i don't have the copyright of the magazine images?
- Unfortunately, no unless the collage relates to criticism review and the author attribution information in question 3 is included. Otherwise, it is copyright, and potentially, moral rights infringement as well.
- Many companies (i.e. ad agencies, marketing & communications firms) and institutions are encouraging, even requiring, their employees to tweet, blog to promote their brands. Who is responsible if an inappropriate or defamatory tweet goes out over one of these " official" feeds, the employer of the employee?
- It depends.
- Employers may be liable for representations made in the "scope of employment"
- Statement made on an employee's personal time, account maybe attributed to employer.
- But the employee may be liable if the activity was not authorized.
- Critical to have policies in place and a paper trail showing what content was authorized- to protect employees and employers.
- True story: employees of one such company have recently been reprimanded (or more) for things they have written or images that have appeared in their personal blogs, Facebook or twitter accounts. Example: marketing 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 bottles 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 outsides of the office?
- From a labour and employment lawyer:
- If non-union employee, more control than you think.
- If your outside work activities negatively impact the business, it can lead to dismissal. But on must consider how likely that the photos would negatively impact the business in this case.
- Ultimately, one need to prove that you were constructively dismissed and sue for constructive dismissal, which would require quitting your job. Litigation is expensive and no guarantee you would win.
CONTACT US
- Email | ifleck@hofferadler.com
- website | www. hofferadler.com
- blog | www.ipaddressblog.com
- twitter | hofferadler@lorrainefleck
