A CRASH COURSE IN COPYRIGHT
WORKSHOP

COURSE OVERVIEW

Caveats, Apologies, Evasions and Insults

I am a lawyer, but my area of Practice is Aboriginal Law – I represent Indigenous peoples and fight for indigenous issues.

I do not actively work in or make my living as a lawyer in the fields of intellectual property and entertainment law. My avocation as a writer, work with arts and writers organizations. volunteer work with writers, research and reading gives me some grounding in this area.

I do not pretend to be an expert – I know a little more than you do. My objective is to share.

This Crash Course does not constitute a formal legal opinion, nor does it constitute legal advice.

It is solely for education and information only, intended to provide a basic grounding in key concepts and their application. It is a beginning primer.

The recipient is encouraged to continue to learn, read and research on the subject and the issues surrounding same.

Not legal advice – educational

BASIC ELEMENTS OF COPYRIGHT

What is it? 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

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

Can Copyright Act is 188 pages, lots of details, qualifications, exceptions

Changing law, gray areas

Broad overview – focus on writers and writing. Music and recording different area

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 19th 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 – Jerks)

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 OF COPYRIGHT

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 IS NOT UNDER COPYRIGHT, not fixed form. BUT notes for this lecture, videotape of this lecture IS UNDER COPYRIGHT.

– 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.

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 The 1998 Act extended for works of unpublished authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier

– ‘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

Internet is a challenge, file sharing, MP3, streaming, downloading;

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

What about the little guy

ARTIFICIAL INTELLIGENCE IS A MASSIVE CHALLENGE

DO YOU NEED TO REGISTER YOUR COPYRIGHT? IF SO, HOW?

Do not send your manuscripts to yourself by registered mail – I’ll find you and I’ll hurt you.

There are government operated Copyright Registries – Registration systems in both the Canada and the US

– Canada – registration system, not a requirement

– 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

– Advantage?

Certain forms of Damages and Redress become available

Proof of Authorship – presumptive, but rebuttable

Proof and Amazon

Other Forms of Registration

Script Registration – Hollywood – Money

ISBN – International Standard Book Number

CIP – Periodicals

Canada – National Archive

US – Library of Congress

How do we Address Proof

Keep your old drafts

Electronic files have metadata

Keep saving as new versions, keep the old versions

Keep all notes, drafts, development materials, sources

Music cases – Often you’ll see on the stand, the artist going through their creative process

Correspondence relating to the work

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

Moral rights can be addressed in contracts – insiste on it

Can be Waived – not sold

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

Privacy Rights

Trademarks and Marks in Trade – Friendly Giant

Beware Trademarks – woo woo!!!

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

Criminal Copyright Infringement

NAVIGATING PUBLIC DOMAIN

PUBLIC DOMAIN IS WHEN COPYRIGHT EXPIRES, IS WAIVED OR OTHERWISE TERMINATED ON A LITERARY OR ARTISTIC WORK

Distinguish PUBLIC DOMAIN COPYRIGHT versus PUBLIC DOMAINTRADEMARK

* Both Copyright and Trademark have registered and unregistered interests;

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

* On the other hand, Trademarks are a Commercial right or interest, in a Logo, name, catchphase, desgin. Trademarks are designed to identify a product. Typically, they are registered.

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

* Both copyright and trademark have Public Domain.

* Copyright Public Domain is usually expiration – it ages out.

* Trademarks can technically last forever, as long as they remain unique and distinctive to identify their product.

* Trademark Public Domain is typically through widespread use – Zipper, Kleenex, Colorisation. When the Trademark is no longer distinctive and unique it ceases to be a trademark.

Distinguish Public Domain from Fair Dealing / Fair Use

* Copyright is retained – you just have a limited exception to use the work. Excptions to Copyright are found in each countries Copyright Act, allowing Fair Use or Fair Dealing in each specific case.

* In Trademark, there is something called a ‘Nominative use’ – ie, by using the trademark, you are not infringing on or claiming the product or mark, you are commenting on it. For instance – a Celebrity book about ‘New Kids on the Block’ is a nominative use, because it’s talking about the product identified by the Trademark ‘New Kids on the Block’ but is not claiming to actually be selling ‘New Kids on the Block’ branded products. Be careful, it’s a fine line.

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

UNITED STATES – PUBLIC DOMAIN – Trademarks vs Copyrights

* 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 of confusion.
King Kong

* Copyright could be reactivated or recreated by adding new content –
Elvira – 2016 American decision – ‘Remastered’ work has new copyright. Elvira Mistress of the Dark series.

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

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

Watch out – even when something enters public domain, new unique elements may still retain copyright.

Land of confusion – stuff that had already entered public domain doesn’t go back under copyright, it stays in public domain.

On the other hand – ‘It’s a Wonderful Life’ – if the underlying work is still under copyright, then a derivative work can be public domain – but still under control of the original underlying copyright. Kind of a headache.

Mickey Mouse and Winnie the Pooh are now in public domain, in their original forms.

But Pooh’s red shirt and Mickey’s white gloves are still under copyright. So watch out that Disney doesn’t get you.

Superman will enter Public Domain in the next few years. But when he does, he will not be able to fly, that came long later.

US also had a parallel Trademark Registration system.

As long term Copryights were in danger of expiring, there was a movement to Trademark images and characters, hence the ubiquitous ™ – Disney Characters, James Bond, the Police Box Tardis, all sorts things got trademarked.

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

* Work which has been expressly licensed.

CAUTION – JUST BECAUSE SOMETHING IS ON THE INTERNET DOESN’T MEAN IT’S PUBLIC DOMAIN

* There are a lot of image license companies, like Shutterstock;

* There are also image trolls – who will try and shake you down.

* It’s kind of wild west.

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.

* A complicating factor: Copyright interests may be split. Unless specific provisions are made for copyright in a person’s artistic or literary work, it may simply be divided with the rest of the estate. If an estate is divided equally between offspring, and these offspring divide their interests equally among their children, you might end up with Copyright being spread around a whole gaggle of cousins, any of whom might have a veto.

* Clear problem when reprinting old or obscure work.

* The law can be muddy – basically, research the work. Date of first publication. Research the author/owner – Date of death? Check against changes to legislation.

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 ON PUBLIC DOMAIN

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

Minefield, tiptoe through, take each case carefully.

ARTIFICIAL INTELLIGENCE GENERATED PRODUCT – CANNOT CURRENTLY SUSTAIN COPYRIGHT.

* Watch this space, that may change. The entire legal framework of AI Generated product is as fluid and changeable as the technology itself. AI Companies are currently engaged in wholesale theft of copyright work, so they have one position. They may change that position when it comes to protecting their own work.

* BEWARE – An AI work that is sufficiently and clearly derived from an underlying copyright work may actually give rise to a copyright infringement claim.

* EXAMPLE – Supposing you inserted a prompt “Give me a drawing of a square shaped yellow sponge, with a face on its surface, a necktie, and brown pants” – AI will search out all similar images that match the prompt, and will give you an averaged out image that bears a startling resemblance to Spongebob Squarepants – cue lawsuit.

THE ELEPHANT IN THE ROOM – ARTIFICIAL INTELLIGENCE

I’m probably not even going to discuss this directly in the Presentations themselves. There’s too much other ground to cover.

The topic is just too big – and too much is in Flux.

There are no hard and fast rules right now.

Artificial Intelligence operates on the basis of Piracy – scraping the work of writers

This is legally controversial – and there is huge push back, including Class Action lawsuits, individual lawsuits, various actions and protests.

AI Claims that scraping is legal

AI proponents, despite this claim, are actively going around inserting secret wording into service contracts allowing for Scraping or “Training” – Zoom, Facebook, Wattpad and WeTransfer have been caught or exposed. This is controversial and there is pushback. WATCH OUT FOR THOSE CONTRACT CLAUSES. SPREAD THE WORD, COMPLAIN, PUSH BACK, IF POSSIBLE AVOID.

As a general rule – Never consent to scraping ‘training’ – avoid sites or platforms which do it.

Scraped or ‘Training’ Data is not necessarily confidential – Beware.

Plagiarism is a thing – the more unique your work is, the more chance of it being actively and actually plagiarized By AI. AI consists of generating averages from scraped material weighted by prompts. The more unique the scraped source – the fewer sources scraped, the more risk of actual direct copying. This is documented.

There is general hostility to AI in the writing / publishing / arts community, and many contracts now require either disclosure or prohibition of use. So be careful. Either avoid it entirely, or use it in extremely narrow and limited ways. It can kill your reputation and your future. And you may deserve it.

Because AI currently cannot sustain copyright, there’s a whole nightmare nest of issues revolving around its use. It’s essentially trafficking in public domain. At the same time, because it cannot sustain copyright, that may expose underlying owned copyrights, creating liability and another nightmare nest of issues – you don’t want Disney suing you.

Right now, there are billions of dollars at Stake in AI development, business and corporate interests are literally drooling at the prospect of fucking entire classes of workers and creators over, it is being shoved down everyone’s throats, judges, lawmakers, stakeholders are all engaged. It’s the wild west folks.