Some notes on copyright

These are a few summary notes that I started writing when I read Lesley Ellen Harris’s Canadian Copyright Law (see below for more information about the book). This is just a bit of basic, introductory information and doesn’t include lots of good stuff like the categories of fair dealing.

Types of intellectual property

1. Patent: devices, formulas, processes, or improvements to existing patents.
2. Trademark: word, symbol, logo, or distinctive shape used to distinguish a product.
3. Industrial design: shape, pattern, or ornamentation.
4. Copyright: protects text, pictures, art, audio recordings, film, software, etc.
5. Confidential information and trade secrets: ideas and information that should be kept confidential because of the terms of a relationship.

Copyright law in Canada

• Falls under federal jurisdiction, under the Copyright Act, enacted in 1924.
• Major amendments to the Copyright Act were made in 1988 (Bill C-60), 1997 (Bill C-32), and 2012 (Bill C-11: Copyright Modernization Act).
• This book does not discuss the “copyright pentalogy,” five supreme court rulings on copyright made on July 12, 2012. See The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, edited by Michael Geist, for a discussion of the meaning of these five cases. Available as a p-book, e-book, or free PDF.
• How copyright works: property rights versus copyright protection. There’s a right to physical property, but also rights to intangible property. When a user buys a book, they have certain rights: to read or give away the book, but other rights are protected: to reproduce or translate the book.

Creations eligible for copyright protection

A work is protected by copyright as soon as it is created, as long as it fulfills the following criteria:

1. Original: It is a new work, not a copy.
2. Fixed: It is set down in some reasonably durable form: written down (even if it’s on a napkin), recorded, saved on a hard drive, etc.
3. Creator is a citizen or legal resident of Canada or another copyright treaty country, or the work is first published in a copyright treaty country.

There are some special rules for “Other subject-matter,” which means sound recordings, performances, and broadcasts.

International copyright law

Canada can extend copyright protection within countries that offer reciprocal protection to Canadian works. The following are international copyright treaties:

1. Berne Convention
2. Universal Copyright Convention (UCC)
3. World Trade Organization (WTO)
4. WIPO Copyright Treaty (WCT)
5. WIPO Performances and Phonographs Treaty (WPPT) (for sound recordings and performances)

How to get copyright protection

1. Protection is automatic

   Under Canadian copyright law, there are no formalities to obtaining copyright: it the protection exists as soon as the work comes into existence. You don’t have to register the work, deposit it, mark it with a special symbol, or include any particular statement. All countries that subscribe to the Berne Treaty (this includes Canada, the U.S., and the E.U.) have to allow automatic copyright when the work is created.

2. Adding a copyright symbol and statement (optional)

   • Makes it absolutely clear that the material is protected.
   • Provides the name of the copyright holder to people seeking permissions.

   Format of a copyright notice

   The copyright notice should include the © symbol, the year of first publication, and the name of the copyright owner. Optionally, you can add the years of major revisions, or use a range of years.

3. Registration and deposit (optional)

   You can register your work with the Canadian Intellectual Property Office (CIPO).
   • Optional, but may be helpful in a court case (you may be entitled to better remedies).
   • Can be used to register a grant of interest (an assignment or licensing of rights to a work), and may give the registered rights holder priority over the unregistered one.
   • Registration does not require—or allow—you to deposit a copy of the work.
   • The fee is $50 for online registration, and processing takes about five days.
   CIPO copyright database search. (Results for “Life of Pi.”)

4. “Poor man’s copyright”

   This method of proving ownership of a work seems to have entered folklore. The idea is that you put a copy of the work into an envelope and mail it to yourself. You leave the envelope sealed until you open it in court to prove that the work existed on the postmarked date. Skeptics point out that an obvious way to cheat is to mail yourself an unsealed envelope and put the work in later. Harris’s book describes poor man’s copyright as a method of providing evidence of existence and ownership, but suggests using registered mail, which presumably requires the envelope to be sealed, or mailing it directly to your lawyer.

5. Registration with the U.S. Copyright Office

   Copyright protection is also automatic in the United States. However, you can choose to register your work with the U.S. Copyright Office. One of the benefits of doing this is that they accept deposits, which can help you prove a case down the road.
   • eCO Registration System: the fee is US$35, and the processing time is about eight months, according to the site.
   • U.S. Copyright Office search. (Results for “Life of Pi.”)

6. Library and Archives Canada deposit

   Library and Archives Canada (LAC) requires copies of publications to be deposited, but this has nothing to do with copyright.

7. Other depositing services

   Professional organizations and writers’ unions may provide depositing services. Using such a service will not cause you to be registered in the Canadian copyright database, but it might help you prove ownership of a work.

International copyright law

International copyright laws are relevant when you distribute your work outside of Canada, or use works created outside the country.

International copyright treaties

There is no international copyright law, just agreements between countries. In copyright treaties, each country agrees to give citizens of other signing countries the same protection they give their own citizens. One exception is for length of the copyright term.

Berne Convention

• Canada is a member, which means that Canada’s Copyright Act has to meet the levels of protection specified in the Convention, and that Canada protects the rights of creators from countries that belong to the Berne Convention.
• The text and a list of member countries is at Berne Convention for the Protection of Literary and Artistic Works.
• The Berne Convention specifies automatic copyright protection. Once a creator in a member country has copyright, copyright protection is automatically granted in all member countries. Berne Convention countries are not allowed to require any formalities for obtaining copyright.

Other international conventions

• Universal Copyright Convention
• Rome Convention

Material protected by copyright

Not protected:

• Ideas
• Facts

Copyright law protects the expression of ideas and facts, but not the facts themselves.

Additional resources: Canadian law

ISBN: 978-1-118-0751-8
October 2013, 368 pp.

• Canadian Copyright Law, by Lesley Ellen Harris. See this post for a review of the book.
• The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, edited by Michael Geist.

Additional resources: U.S. law

• U.S. Copyright Office’s “Copyright Basics”
• Chicago Manual of Style, Chapter 4 (online resource requires an account; free trial available)

How can I protect my work before sending it for editing?

Sometimes writers ask how they can protect their intellectual property before sending it to an editor. Register the copyright? Write a contract? Here’s what I tell them.

Choose an editor you trust

The most important thing is to choose an editor you trust and feel comfortable with. Your editor is bound by professional ethics to respect your privacy and your ownership of the manuscript. Make sure the person you’re thinking of hiring is a legitimate practitioner. Do an online search for their name and contact information and make sure their information checks out. Make sure their communications with you sound reasonable. You can also discuss the work on the phone, ask for references, see if the editor’s LinkedIn connections look believable, and find out if they belong to a professional organization.

Put your expectations in writing

Although a good editor will respect your ownership rights, there’s no harm in writing a simple letter of agreement or contract that states that the editor cannot share the manuscript with any third party without your explicit permission and that you retain full rights. Editors Canada has a sample editing contract that you could add this to.

Use good computer security

As well as taking precautions to make sure you don’t lose your work to a computer crash, you should also consider computer security. If you are very concerned about security, consider encrypting your manuscript before you store it in a cloud storage service or send it via email.

Understand that you already have copyright protection

It’s important to understand that under Canadian and U.S. law,* you automatically have copyright on your manuscript as soon as your work is written down. Although you can register your work with the Copyright Board of Canada, you don’t need to do that to secure your rights. (If you do decide to register your work, it probably makes more sense to register at the time that you publish, when the manuscript is in its final form and you are releasing it into the wild.)
*In all countries that are members of the Berne Convention, copyright comes into being automatically, without the creator having to register their work.

Canadian Copyright Law, 4th ed.: An Updated Guide to Canadian Copyright Law for an Age of Reckless Infringement by Lesley Ellen Harris

ISBN: 978-1-118-0751-8
October 2013, 368 pp.

When it comes to producing anxiety in writers and editors, copyright is right up there with citation styles, libel, and the correct use of the subjunctive mood. Most people get by on a combination of hearsay and superstition (“Mrs. Thistlebottom said it’s always OK to quote less than fifty words” . . . “It’s for noncommercial use” . . . “It’s in a public place” . . . “We have to change that to ‘candy bar’”), and that doesn’t work too badly until it comes to publishing online, where the stories sometimes get weird. I’ve seen people ask whether they can publish a URL without permission, while others have tried to claim that nothing on the web has any copyright protection (see “But honestly Monica”).

Lesley Ellen Harris’s Canadian Copyright Law is a readable, complete introduction to Canadian copyright law, covering text, photographs, art, video, music, and more. Harris explains what types of intellectual property fall under copyright as opposed to patents, trademarks, industrial design protection, and trade secrets. She summarizes what rights are included in copyright, how they can be exploited, and how copyright is infringed, and discusses how violations are handled. She also explains how to license content and gives some guidelines on fair dealing. There’s discussion of international copyright treaties, and a full chapter on US copyright law.

The book contained just about everything I wanted to know, and it was well organized and easy to understand. It’s quite a reasonable length, so you can realistically read it cover to cover. The author seems to take a neutral point of view, which is helpful given that there is some controversy over how to interpret recent Supreme Court decisions. I think the book takes into account the results of the “copyright pentalogy,” five decisions by the Canadian Supreme Court on copyright that were delivered on July 12, 2012, but there’s no direct discussion or analysis of the cases. This book seems like an excellent starting point for the lay reader who needs to get a grip on how to protect, license, and use creative works.

Lesley Ellen Harris is a lawyer, writer, and teacher who specializes in copyright law.

Accompanying material online

• My blog post summarizing some of the information in the book.
• Book webpage, including some updates to the book.
• Copyrightlaws.com: see copyright quizzes.
• The Copyright Act.

Reviewed from a copy borrowed from the library.

Ethics for Editors Seminar

Photo by Runar Eilertsen. Some rights reserved.

Understand your role.

Keep your promises.

These were the guiding principles behind our discussions during an Editors’ Association of Canada seminar taught by Mary Schendlinger of Geist magazine.

Why does a copy editor need to understand ethical issues?

Editors are the front line of the publishing industry: after authors, editors work most closely with manuscripts, and often, that makes them the publishing professionals who flag potential libel, copyright infringement, plagiarism, invasion of privacy, and biased language. If you work with self-publishing authors, you might be the only publishing expert the author comes in contact with who can warn them about these issues.

Responsibilities to many stakeholders

You may think of publishing ethics in terms of dealing with your employers or clients, but there is a much wider range of stakeholders to consider: authors; readers; your colleagues and the larger community of writers and artists; other publishing professionals, such as printers, designers, booksellers, libraries, advertisers, and investors; and the environment.

• The author’s hard work and creativity should be respected. Copyright law gives them the right to be credited and compensated, and for their work to be published without distortion.
• The reader deserves a good product.
• You can support your colleagues and the publishing community by participating in industry events and supporting professional associations. Treat your clients and staff well. Be honest and fair with your professional recommendations.
• Consider the environmental footprint of your publications and your work methods. Even Internet use has an energy cost.

Some questions and common problems

Photo by gego2605. Some rights reserved.

Here are a few questions that came up together with answers that were offered.

When you’re a freelance editor, is it OK to turn away a manuscript because you don’t agree with the opinions expressed in it or you just don’t feel like working on it? Yes. It’s OK to choose projects that you’ll enjoy working on, and the editing process works best when the editor is enthusiastic about the project.

Conversely, is it OK to accept a project you’re not enthusiastic about? Yes. You can do an excellent, professional job editing a manuscript even if you’re not personally passionate about wing-nut-manufacturing specifications, the life cycle of the hookworm, or cooking with kale.

What should you do when you find plagiarism in a manuscript? If you find racist or sexist statements? Plagiarism can happen by accident, and biased language might be completely invisible to the author. Treat the problem as a problem with the writing, not a problem with the author, and address it in terms of how it could distract the reader from the book’s message.

What if you’re working on a manuscript and you find errors that should have been fixed at an earlier stage in the editing? Be careful about complaining to your employer that the earlier editor didn’t do their job. It may be that what looks like an error was kept at the insistence of the author.

Further reading

• See also my introduction to Canadian libel law.
• Various style guides have sections on legal issues: Editing Canadian English, 2nd Ed., Chapter 11, “Editors and the Law,” Chicago Manual of Style, 17th Ed., Chapter 4 “Rights, Permissions, and Copyright Administration,” Associated Press Stylebook, “Briefing on Media Law,” and Canadian Press Stylebook, various sections including “Legal.”
• Canadian Copyright Law by Lesley Ellen Harris has a newly updated edition.