A CRASH COURSE IN COPYRIGHT FOR WRITERS

COPYRIGHTS – In the modern era, literally every artist and writer lives and dies on their copyrights. But what exactly is copyright? Where does it come from? Who created it and how? What does it mean? What exactly do you own when you have a copyright? What are your rights to your own work? How do you prove or register your rights? Do you even need to? How long does it last? How do you market it, what are you selling? Where is the line between your copyrights and someone else’s? When is copyright infringed? What about reviews?

A basic understanding of copyright is a fundamental, critical need for any writer or artist to navigate through life. This presentation is intended to provide the tools to appreciate and explore rights. Enclosed are my presentation notes for When Words Collide, 2026.

COURSE OVERVIEW

What is Copyright? It’s the right to make copies.

Examples – reproduction, translation, interpretation, exhibition, broadcast

When is it created, how is it created, how it works, who owns it

Limits and exceptions

Similar rights – Moral rights, privacy rights, publicity rights, trademarks

Focus on Canadian copyright, will touch on Americans

CAVEAT: Can’t make you an expert – do your own homework – but know where to look

Canadian Copyright Act is 188 pages, lots of details, qualifications, exceptions. Copyright Act

Changing law, gray areas Broad overview – focus on writers and writing. Music and recording different area

CAVEAT: Not legal advice – educational

HISTORY OF COPYRIGHT

Control over reproduction – sense of ownership, difficulty

Printing Press – and the threat – French – Etienne Doulet, burned at the stake. (800

printers, publishers, authors and book dealers were in the Bastille at the time of storming)

Printing presses were licensed and strictly controlled in England,

Even into the 19^th Century – McKenzie King, printers and pamphleteers were attacked, presses destroyed. Subversive, dangerous and confrontational.

Europe – multiple jurisdictions, different approaches here and there.

English Copyright – statute of Anne 1709 – limited copyright 21 years – 14 years for new books, plus a renewal of 14 years if the author survived the first 14 -think about that.

French ‘Rights of Authors’ and moral Rights

Dutch Piracy

Berne Convention 1886-1887 – (Victor Hugo ‘Les Miserables’) (United States signed in 1988)

Universal Copyright Convention, 1952 – extended to states not part of the Berne Convention, provided reciprocal rights. (US didn’t sign)

United States – Big ass pirates – developed an alternative system, based on registration. That’s why so many American films ended up in public domain.

Now it’s China – Middle East has also had a history of not paying attention – Turkey, Iran

Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)

WHAT DID THESE CONVENTIONS DO

International recognition of copyright

Inter-country recognition, reciprocity

Basic rights and standards – but each country has its individual

Sets a floor – but can go beyond

BASIC ELEMENTS

Distinction Between a work and the copyright

– Picture of a duck, a book, a painting

What are basic elements of copyright.

– creative work – stories, novels, poems, jingles, photographs, pictures, films, any number, songs, sheet music, video, sculpture, statue, etc.

– must be fixed or recorded

A dance or improv show, no go

A recording of an improv, or a choreography

This lecture, notes for this lecture, videotape of this lecture

– ideas are not copyright, anyone can use an idea

– facts not copyright – DaVinci Code / Holy Blood Holy Grail

– title cannot be copyright –

Bundles of rights

– includes copying, translation into languages, re-imagining, characters, settings, components, interpretation into formats (books to movies) (drawings to sculptures), broadcasts,

– time periods, jurisdictions

IMPORTANT – rights can be sold or given selectively.

Term of Copyright

– Originally 50 years – many jurisdictions still lower end

– Life of Artist plus seventy years

– Corporations and unknown artists – 70 years

– Europe – 70 years from death of artist.

– Longer periods – United States – now 70years. But for works published before 1978, a maximum of 95 years.

Watch Out for – United State: Copyright Term Extension Act – aka Mickey Mouse Protection Act 1998. The 1998 Act extended for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier

This is why we are finally seeing old works like Winnie the Pooh or Mickey Mouse enter public domain.

Caution – not everything goes into public domain at once. New elements added to an ongoing work will have later copyright – Mickey Mouse’s white gloves, or his voice were later additions.

– ‘Tweaking’ new lease – 2016 American decision – ‘Remastered’ work has new copyright. Elvira Mistress of the Dark series.

Who Owns Copyright?

– Creators own –

– Work for Hire – American… Canada has an equivalent.

– Subsidiary Copyrights, nested copyrights – movies as an example

King Kong complications – Two Kongs in 70’s. King Kong cartoon and Toho

– Joint Copyrights – Malazan

– Independent creations

– Unpublished

Fair Dealing/Fair Use – Exceptions to Copyright

Canada – Fair Dealing

research,

private study,

education,

parody or satire

review and criticism, if maker is acknowledged

news reporting, maker acknowledged

In the US – Fair Use

commentary,

search engines,

criticism and review,

parody,

news reporting,

research, and

scholarship.

Fair use provides for the legal, unlicensed citation or incorporation of copyrighted material in another author’s work under a four-factor test.

1) Purpose and Character – transformative

2) Nature of the Work

3) Amount and substantiality of the infringement

4) Effect on the Work’s value

5? Acknowledgement

Field is changing –

Rap and Music Sampling, a lot of litigation then

Internet is a challenge, file sharing, MP3, streaming, downloading, still at issue

Commercial entities throwing their weight around – It’s a wonderful life

What about the little guy

Copyright Registration – Canada and the US

– Canada – registration system, not a requirement

Registration of copyright—filing online

– US registration system, used to be mandatory

1790 – 14 years, plus a 14 year renewal

1831 – 28 years with a fourteen year renewal

1909 – 28 years with a 28 year renewal

1976 – life of author, plus 50, or 75 years for corporate

1992 – removed requirement for renewal

– Why? – Historical

– Registration fees

– Proof

– Amazon

What is not registration?

– ISBN (International Standard Book Numbers)

– National Archives/Library Deposit

– Registered mail

OTHER RIGHTS

Moral Rights – originally french

Right to be recognised as author

Right to integrity of the work –

US recognises moral rights only for visual arts

Can be Waived – not sold

Publicity Rights – Kim Kardashian, Son of Bela Lugosi, Three Stooges

Privacy Rights

Trademarks and Marks in Trade – A Commercial Right – Friendly Giant

WORKING WITH THESE RIGHTS

Assignments and Licenses, difference – express

Always go with licences

Unequal bargaining power

The rights you sell

– duration/time period

– jurisdictions

– specific bundles

Remedies for infringement – on your own

– commercial loss – lost profits calculated in different ways

– restriction

Abuse.

Criminal Copyright Infringement

Public Domain (Addendum)

(following are my moderator notes for a panel on Navigating Public Domain, October, 2024, NASFIC in Buffalo, NY.)

WHAT ARE THE BIG, PRESSING MODERN ISSUES WITH PUBLIC DOMAIN AND WRITERS, CURRENTLY?

HAVE THERE BEEN ANY MAJOR SCANDALS – IE – OMEGAVERSE

WHAT’S A GOOD WAY TO DETERMINE IF SOMETHING IS IN PUBLIC DOMAIN

IF YOU THINK ITS IN PUBLIC DOMAIN, WHAT SHOULD YOU WATCH OUT FOR? DANGER ZONES.

HOW CAN WE AS WRITERS / PUBLISHERS MAKE USE OF PUBLIC DOMAIN?

ARE THERE LEGAL AVENUES OR LOOPHOLES THAT HAVE THE SIMILAR EFFECT – FAIR COMMENT

Distinguish COPYRIGHT versus TRADEMARK

* Both Copyright and Trademark have registered and unregistered interests;

* Full rights vest in Copyright whether registered or unregistered, there are just additional protections;

Unregistered Trademark is recognized but risky – can be pre-empted by registration.

* Both have Public Domain –

* Copyright Public Domain is usually expiration.

* Trademark Public Domain is typically through widespread use – Zipper, Kleenex, Colorisation

Distinguish Public Domain from Fair Dealing / Fair Use

* Copyright is retained – you just have a limited exception to use the work

Public Domain is an International Issue – Each Country has its own rules

UNITED STATES

* US initially had a Registration System – facilitated piracy – if you didn’t register it, you didn’t have copyright.

* Copyright could be registered by third parties – Dracula

* Failure to register or register properly lead to variou works falling into public domain.

Night of the Living Dead

* Or it lead to a giant swamp.

King Kong

* United States – – Longer periods – United States – now 70years. But for works published before 1978, a maximum of 95 years.

Watch out – even when something enters public domain, new unique elements may still retain copyright – Pooh’s red shirt, Mickey’s white gloves.

OTHER COUNTRIES – BERNE & UCC – INTERNATIONAL TRADE AGREEMENTS

* Originally general rule of life of the artist plus fifty years – no registration, automatic on creation

* Corporate owned /created work – fifty years.

* Extended to 70 or 75 years now.

* Diff jurisdictions had slightly different rules

– Canada published a collection of James Bond stories – Bond was in public domain there.

– Gutenberg Australia published ERB novels out of place.

* What went into public domain before the extension of period stayed there in public

– Possible national variations.

* Applied only to existing works.

ITEMS DELIBERATELY PLACED IN PUBLIC DOMAIN

* Tricky, no valid registration or tracking system – do your homework to verify

CREATIVE COMMONS

MYSTERIOUS WORK – ABANDONED ARTISTIC OR LITERARY ESTATES

* Something of a problem – not in Public Domain – but at the same time, may be difficult or impossible to track down the copyright owners. Copyright interests may be split.

* Clear problem when reprinting old or obscure work.

THINGS FOR WHICH COPYRIGHT DOES NOT APPLY AT ALL

* Names

* Titles

* Sufficiently generic concepts, ideas, phrases

* Test is substantial similarity

* Not same as plagiarism – subgroup

* But watch out for poetry, song lyrics or melodies – threshold is very different.

BOTTOM LINE

There is no road map, registry or authoritative source for works.

Minefield, tiptoe through, take each case carefully.

USEFUL LINKS

Canadian Copyright Guide

https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr02281.html

Canadian Copyright Registration

https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr00021.html

https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/vwapj/DA-CR-form1-eng.pdf/$file/DA-CR-form1-eng.pdf