FAQ on Copyright

COPYRIGHT IN CONTEXT
Prepared by Tamara Shepherd

  • FAQ ON COPYRIGHT
  • COPYRIGHT POLICY IN CANADA TIMELINE
  • FAIR DEALING IN CANADA
  • FURTHER RESOURCES ON COPYRIGHT

FAQ on COPYRIGHT ISSUES

What is a copyright?
In the simplest terms, copyright means “the right to copy.” Only the owner of copyright, very often the creator of the work, is allowed to produce or reproduce the work in question or to permit anyone else to do so (this is sometimes called a “sole” right or “exclusive” right). Copyright law rewards and protects your creative endeavour by giving you the sole right to publish or use your work in any number of ways. You may also choose not to publish your work and to prevent anyone else from doing so.

Non-rivalry and exclusion
Two important elements that distinguish copyrights from other property rights are that copyrighted works are, in most cases, non-rival in consumption and they do not inherently possess exclusion mechanisms. Being non-rival in consumption means that the work is not depleted through use. The exclusion mechanism is best described as the factor that determines how certain benefits may only be enjoyed upon purchase or transaction, as with most consumer goods. Creative works, on the other hand, are not naturally subjected to an exclusion mechanism. You can enjoy the benefits of creative works through public distribution, which is regulated through policy and sometimes shaped by the technology itself. For example, on the web, creative works often defeat regulation by way of the dispersed nature of the network, and as such, can usually be enjoyed through streaming or webcasting without much control by policymakers or their attempted implementations of regulatory measures.

Owners’ rights
Despite the ability of the web to make the most of creative works’ non-rivalry and lack of exclusion mechanisms, the legal system of copyright exists to reward and thus stimulate creativity. Under the premise that the originality of a creative can be satisfactorily determined – even if in practice, it never gets to court to be officially decided – the owner of the work can automatically assume the copyright to reproduce the work as he or she sees fit. In Canada, copyright need not be registered, since it exists at the moment when an original expression is fixed into some tangible medium. However, copyrights can be registered with the government for a small fee, which includes that right in a national registry – which can be useful for creating a presumption of ownership and preventing infringement. (see http://www.cipo.ic.gc.ca)

There are two elements to these owners’ rights, one economic and the other moral:

Economic rights are the ones that can be bought, sold or licensed, while moral rights cannot be assigned to others. So economic rights can include the reproduction right, or the ability to make copies of the original work – this reproduction right extends to both full reproduction, as well as reproduction of a substantial part of the work. So in this way, only “non-substantial parts,” usually less than half of the original, can be exempt from the copyright protection.

By contrast, moral rights, which can only be held by the original author of the work or his or her heirs, and not corporations, deal with the identity of the author or creator of the work as opposed to the actual copies that get produced. Moral rights cover concepts like integrity (allowing authors to prevent certain distortions of their works), attribution (where the author gets credit for his or her authorship role), and association (enabling the author to control context in which his or her work gets used, reproduced or exhibited).

Users’ rights
While owners’ rights describe the rights over making copies from the point of view of creators and copyright holders, creative works are also subject to users’ rights that describe how the wider public has the right to access and use creative works as part of cultural participation and growth. For example, only through the reproduction of creative works like novels, paintings, and musical recordings, would it be possible for people located across the globe to be exposed to such cultural works.

User activities like viewing and listening to creative works on the web is an inherently networked experience, where people share and circulate creative works in a socially and culturally productive manner. As such, an expansion of users’ rights can lead to increased individual agency and in turn, strengthen social and cultural dialogues in a democratic society. By loosening up controls over copyright and giving user’s more rights to copy creative works, the diversity of cultural expression would increase.

In relation to digital culture, users’ rights extend to the practice of viewing or listening to creative works through digital technology, since the technology makes instantaneous copies as part of its delivery mechanism, and thus invokes copyright.

Fair dealing and users’ rights
In Canada, fair dealing describes a number of categorical exceptions to copyright that allow users to copy creative works for specified purposes. In practice, fair dealing exceptions are meant to strike a balance between owners’ and users’ rights. The fair dealing exceptions enshrined in current copyright legislation, The Copyright Act (1985), are as follows:

Fair Dealing

29. Fair dealing for the purpose of research or private study does not infringe copyright.29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:
(a) the source; and
(b) if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer’s performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.

29.2 Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned:
(a) the source; and
(b) if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer’s performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.
(Copyright Act 1985)

Remix culture
Web platforms such as blogs, Flickr, and YouTube have invited a proliferation of amateur creative labour among users who remix cultural content and share it online. This remix culture has been defined as the process of reworking existing cultural texts into new forms in a kind of collage that leverages old meanings to create something new (Lessig 2008, p. 76).

In this way, remix has the effect of eroding some of the traditional distinctions between producer and consumer, and between content provider and user, in turn complicating the essential copyright categories of owners’ and users’ rights. As a result, copyright law now has immediate implications to an ever-widening group of web users who simultaneously consume, remix, and circulate copyrighted works.

According to fair dealing exceptions in Canada, users are legally entitled to remix creative works for certain categorical purposes, but at the same time, some of their rights are also impacted by the Terms of Service on individual websites. For example, YouTube’s Terms of Service align it with corporate sources of content against user remixes in implementing rules against the use of copyrighted works and technologies that seek out inappropriate uploads of copyrighted material.

The alternative to copyright: Copyleft
As Lawrence Lessig argues in his book, Free Culture (2004): “we come from a tradition of ‘free culture’,” where “free” is meant in terms of free speech or free expression (xiv). The culture of free speech that Lessig attributes to the founding principles of democratic societies is supported by the granting of intellectual property rights with certain limits that ensure the circulation of ideas in such a way as to bolster creativity and innovation in future generations.

In keeping with free culture and the initially open idea of the web, “copyleft” describes a movement for easing up on copyright restrictions in the service of bolstering democratic communication through online sharing.

The most prevalent iteration of copyleft principles for online content can be found in Creative Commons (CC), an organization that provides copyleft licenses to creators seeking to protect their works under less restrictive legal terms. Designed in 2001 by a group of U.S. lawyers to help citizens navigate new copyright restrictions, CC licenses:
1) authorize noncommercial distribution;
2) are compiled into a registry, so it’s easy to see who holds the license;
3) make copyright more transparent and user-friendly; and
4) authorize noncommercial copying thus decriminalizing the copy.

CC licenses thus enable creators to get credit for their work, while still sharing it under specified circumstances, fostering increased networked collaboration.

In order to be relevant outside of just the U.S., CC licenses have also been adapted for the specific contexts of various countries’ legislative copyright regimes. For the Canadian context, CC licenses can be found at http://wiki.creativecommons.org/Canada.

The absence of copyright: Public Domain
Public domain refers to the total absence of copyright protection for a creative work (such as a book, painting, photograph, movie, poem, article, piece of music, product design or computer program).

Public domain works (i.e., works in the public domain) are considered to be a part of the public’s cultural heritage, and thus anybody is entitled to make use of them for any purpose, including copying, modifying and even selling, including with a restrictive license… it is even permissible to remove the original author’s name and treat it as one’s own work.

There are two ways that a copyrighted work can enter the public domain. One is the deliberate surrendering of the copyright by the creator of the work. The other, and more common, is the expiration of the copyright due to the passage of some legally stipulated period of time. In Canada, that period of time is typically 50 years after the author’s death.

COPYRIGHT POLICY IN CANADA TIMELINE

1921: Copyright Act of Canada introduced

1988: Copyright Act of Canada amended

1997: Copyright Act of Canada amended

2005: Copyright Act of Canada amended

1996: WIPO Copyright Treaty

1998: Digital Millennium Copyright Act
In the U.S., the legislation that was introduced in 1998 to enact this criminalization of ‘piracy’ or the circumvention of digital locks is called the Digital Millennium Copyright Act, or DMCA. The DMCA implements two of the WIPO treaties that were introduced in 1996 at the Berne Convention, the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. It also contains anti-circumvention provisions, which make it illegal to:

(1) “circumvent a technological measure that effectively controls access to a work,” except as allowed after rulemaking procedures administered by the Register of Copyrights every three years. (The exemptions made through the three-yearly review do not apply to the supply of circumvention devices, only to the act of circumvention itself.)

(2) “manufacture, import, offer to the public, provide, or otherwise traffic in” a device, service or component which is primarily intended to circumvent “a technological measure that effectively controls access to a work,” and which either has limited commercially significant other uses or is marketed for the anti-circumvention purpose.

(3) “manufacture, import, offer to the public, provide, or otherwise traffic in” a device, service or component which is primarily intended to circumvent “protection afforded by a technological measure that effectively protects a right of a copyright owner,” and which either has limited commercially significant other uses or is marketed for the anti-circumvention purpose (DMCA 1998, sec. 103).

Effectively, the DMCA reverses 200 years of U.S. copyright law by taking the decision-making away from users or governments, and putting it in the hands of companies who exercise DRM or locks on digital content. This in turn has been said to stifle fair use, free expression, innovation, and competition.

The DMCA has also been criticized for the way it was drafted and passed into law, which was very swiftly, and without public consultation. Vocal opposition to the DMCA from the public, from academic and scientific communities, and from creators themselves has focused on the way that it prevents free speech through relatively conservative provisions for fair use. Moreover, as mentioned above, the DMCA allows producers to exercise control over the uses of their work, which often results in a chilling effect on cultural production because users are afraid that repurposing creative works will lead to litigation.

2004: Supreme Court decision on SOCAN (Society of Composers, Authors and Music Publishers of Canada) v. CAIP (Canadian Association of Internet Providers)
This case that debated the public interest claim for disseminating cultural works online without the threat of copyright infringement. In the final decision, the judge stated, “The capacity of the Internet to disseminate ‘works of art and intellect’ is one of the great innovations of the information age […] Its use should be facilitated rather than discouraged, but this should not be done unfairly at the expense of those who created the works of art and intellect in the first place.”

2005-6: Bills C-60 and C-61
In the Spring of 2005, the Liberal government tabled Bill C-60, which proposed amendments to Copyright Act that reflected the DMCA’s favouring of corporate rights holders over users’ recourse to fair dealing provisions. Bill C-60’s stipulations included: digital lock circumvention prosecution; privacy violations through data collection and monitoring; restriction of search-engines; photography term extension that benefits corporate owners; inefficient educational exceptions that automatically destroys copies after a fixed period; disregard for the precedents set by recent supreme court cases; and no exceptions provided for educational internet use.

Due to these provisions, Bill C-60 spurred a significant amount of public opposition, including a formal Petition for Users’ Rights. Ultimately, On November 29, 2005, the opposition to the government tabled a non-confidence motion which passed, dissolving Parliament and effectively killing the bill. The subsequent government tabled a new bill called C-61 in 2006, which contained essentially the same provisions, and also died with a dissolution of Parliament.

2010-present: Bills C-32 and C-11, the Copyright Modernization Act
In June 2010, the Harper government tabled Bill C-32, a slightly revised version of bills C-60 and C-61. The differences in Bill C-32 include some extensions of fair dealing, such as to parody, satire and education uses of copyrighted works. This, along with the User-Generated Content Exception that allows for the use of copyrighted works in user-made remixes (with some restrictions), have made Bill C-32 slightly more balanced in favour of users’ rights in contrast to the earlier bills.

The provisions around digital locks, however, remain conservative. For example, any time a digital lock is used on any creative work, that lock supersedes any user rights. It is illegal to circumvent digital locks, even for uses covered under fair dealing exceptions. As Canadian IP law expert Michael Geist has said, “In other words, in the battle between two sets of property rights – those of the intellectual property rights holder and those of the consumer who has purchased the tangible or intangible property – the IP rights holder always wins. This represents market intervention for a particular business model by a government supposedly committed to the free market and it means that the existing fair dealing rights (including research, private study, news reporting, criticism, and review) and the proposed new rights (parody, satire, education, time shifting, format shifting, backup copies) all cease to function effectively so long as the rights holder places a digital lock on their content or device.”

Yet just like Bills C-60 and C-61, Bill C-32 passed its second reading in November 2010, only to be thrown out when parliament was dissolved on March 26, 2011.

Since the death of Bill C-32 and subsequent federal election, the Copyright Modernization Act has returned in the form of Bill C-11, tabled in September 2011. It is basically the same piece of proposed legislation as Bill C-32, and is expected to pass this time, due to the Harper Government’s majority status.

The imminent passage of Bill C-11 points to some of the problems with copyright legislation in Canada, not the least of which is that it is cheaper for the government to buy into a wholesale protectionist scheme than to open up possibilities through precedent-setting legal cases. Moreover, due to automatic assignment of copyrights upon creation of a work, there is no central registry of works – users have to use their own research skills to try to find an author, or rights holder. While there are a number of copyright collectives in Canada to help with this process – 34 different ones to represent different types of creators – creators are burdened with the need to pay into these collectives to help protect their copyright claims.

One of the reasons why intellectual property and copyright legislation are so crucial right now is their ties to public funding for the arts, which are facing a decline in Canada. Protectionist regimes argue that tightening copyright controls will increase the economic value of the arts, yet this essentially entails offloading national cultural funding responsibilities onto private sources and consumers. In this way, the Harper government’s proposed amendments to copyright law go hand in hand with its recent cuts to arts and culture funding – as engaged citizens, we need to express to our representatives the value of arts and culture to Canadian society.

FAIR DEALING IN CANADA
Even while Canadian legislation continues to be influenced by copyright debates in the U.S., the most significant difference between Canadian and U.S. approaches to copyright rests on the distinction between “fair use” and “fair dealing.” These terms describe user’s rights within a climate of increasing owner controls over copyright.

In the U.S., fair use doctrine protects user’s rights under a series of open-ended uses: “the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright” (United States Code, title 17, sec. 107, emphasis added).

In Canada, by contrast, user’s rights to fair dealing exceptions are categorical rather than open-ended, where copyright is said to not be infringed by the specified purposes of research and private study, criticism or review, and news reporting (Copyright Act 1985, sec. 29). The fair dealing exceptions enshrined in current copyright legislation, The Copyright Act (1985), are as follows:

Fair Dealing

29. Fair dealing for the purpose of research or private study does not infringe copyright.

29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:
(a) the source; and

(b) if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer’s performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.

29.2 Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned:
(a) the source; and
(b) if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer’s performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.
(Copyright Act 1985)

While it might seem that the U.S. open-ended approach is more expansive, in practice, its limitations have been determined in case law very conservatively, where courts have tended to favour corporate rights holders over users. The potentially open-ended nature of fair use has thus resulted in strict interpretations of user rights, creating a “chilling effect” or self-censorship in uses of creative works.

In Canada, fair dealing has in fact led to a better balance between owner’s and user’s rights. In relation to digital culture, user’s rights have been upheld through interpretations of the existing Copyright Act, which have tended to emphasize the public value of the web for circulating creative works.

This explicit interest in balancing owner’s and user’s rights in the digital age has meant that in practical terms, fair dealing in Canada has been more fair to both interests in copyright than fair use in the U.S. At the same time, however, the practice of placing technical limitations on making copies through digital locks has meant that the issue of copyright often crosses borders. Digital lock technology – which prevents copies from being made through technological rather than legal mechanisms – ends up overriding user’s rights to fair use or fair dealing, biasing copyright in favour of owners, usually the corporate owners who reproduce and/or distribute cultural works (e.g. Apple’s iTunes).

While Canada does not yet have such anti-circumvention provisions as in the U.S., where copyright law criminalizes the circumvention of digital locks, there has been increasing pressure on Canadian governments from corporate rights holders to enact such laws. This is why the Bill C-11’s anti circumvention provisions remain in the bill despite public opposition, and are in fact the central purpose of modernizing the Copyright Act.

FURTHER RESOURCES ABOUT COPYRIGHT

Appropriation Art
Check out video: Why Copyright? Canadian Voices on Copyright
http://www.appropriationart.ca/action/c32

Artists Legal Outreach
http://artistslegaloutreach.ca/

Canadian Federation of Students. The Fight for Fair Copyright (May 25, 2010)
watch?v=WA1RDyN7JTg

Creative Commons
http://creativecommons.org/ 

Creative Commons Canada
http://wiki.creativecommons.org/Canada

The Documentary Organization of Canada.
(2010). Copyright and Fair Dealing: Guidelines for Documentary Filmmakers.
http://docorg.ca/sites/docorg.ca/files/DOC-FairDealing-EN-v2-web.pdf
(October 2011). The Search for Fair Dealing: Report on the DOC Road Show on Fair Dealing

Duke University. Centre for the Study of the Public Domain.
http://www.law.duke.edu/cspd/
Bound by Law?: Tales from the Public Domain. Keith Aoki, James Boyle & Jennifer Jenkins (2006)

Theft: A History of Music Musical Borrowing from Plato to Hip Hop
Keith Aoki, James Boyle & Jennifer Jenkins (2011)

Free Expression Policy project
http://www.fepproject.org/issues/copyright.html

Good Copy, Bad Copy – film about CR (Denmark, 2007)
http://www.goodcopybadcopy.net/

Illegal Art
http://www.illegal-art.org/

Laura Murray’s Fair Copyright for Canada blog
http://www.faircopyright.ca/

Lawrence Lessig’s Free Culture
http://www.free-culture.cc/

Lawrence Lessig’s Remix
http://remix.lessig.org/

Media Education Lab. Copyright, What’s Copyright? (2009)
watch?v=0QiO_H0-ok8

Meera Nair’s Fair Duty blog
http://fairduty.wordpress.com/

Michael Geist’s law and technology blog
http://www.michaelgeist.ca/

Open Media
http://openmedia.ca

RIP! A Remix Manifesto, a film about copyright and remix culture, dir. By Brett Gaylor
http://ripremix.com/

FOR FURTHER READING

Patricia Aufderheide & Peter Jaszi. (2011)
Reclaiming Fair Use: How to Put Balance  Back into Copyright. Chicago: The University of Chicago Press.
http://www.centerforsocialmedia.org/fairuse
Analysis and application of the use of fair use (in the US copyright context) for media educators, creative artists, and documentary filmmakers.  Provides very useful guidelines for codes of best practices for fair use.

Renee Hobbs. (2011) Copyright Clarity: How Fair Use Supports Digital Learning. Thousand Oaks, CA: Corwin/National Council of Teachers of English.
http://mediaeducationlab.com/copyright
Designed for K-12 teachers, this useful guide distills copyright basics and fair use for pedagogical practices.

Laura J. Murray & Samuel E. Trosow. (2007) Canadian Copyright: A Citizen’s Guide. Toronto, ON: Between the Lines.
A highly engaging primer on copyright, covering its history, Canadian legislation, and various rights issues for creative artists and within the cultural industries.

Kembrew McLeod & Peter Dicola (with Jenny Toomey & Kristin Thomson). (2011) Creative License: The Law and Culture of Digital Sampling. Durham, NC: Duke University Press.
Based on interviews with creative artists, legal and economic analysis, and a historical overview, this important book provides a panoramic sweep of the ethical and artistic aspects of musical sampling and the conundrums of copyright.

 

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