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.

The basics of libel law in Canada and the new responsible communication defence

I recently attended a Tyee master class: Responsible Journalism in 2012: The Changing Legal Landscape for Journalists, taught by Leo McGrady of McGrady and Company, a firm whose specialties include libel law and intellectual property.

The biggest take-home message? Libel risk is manageable. Don’t be too afraid to write. In the last few years, courts have set precedents in libel law that have shifted the balance toward freedom to publish, and it’s important to use this new freedom from libel chill to build a new culture of freedom of expression.

Why does “libel chill” matter? Don’t people only get sued for libel if they lie?

Simon Singh: fair comment.
Photo by englishpen. Some rights reserved.

I saw this sentiment in a blog comment just now, and I think it’s an important misconception to address. No, you’re not only at risk if you lie. Consider the following situations:

You review a book. You say it’s terrible, that the author doesn’t know what they’re talking about, and that they can’t write for beans. You could get sued. See this case about negative book reviews on Amazon’s website, and this case about a negative academic review.

Or perhaps you find out that a Canadian company is doing business with a supplier in a developing country who treats its employees very badly. You know this because you have done interviews with reputable sources. But if you publish a statement like, “John Doe, who works for an NGO in the country, reports that workers don’t have access to basic safety equipment,” could you prove in a court of law that workers don’t have access to basic safety equipment? If not, you may not feel safe publishing that sentence.

That’s what they mean by “chill.”

What is libel?

Libel refers to defamation in written, printed, broadcasted, or other lasting form.

Defamation is an attack on a person’s character that attributes to the person some form of disgraceful conduct—dishonesty, cruelty, sexual misbehaviour, irresponsibility, and the like—in either personal or professional concerns.

—Editing Canadian English, 2nd Ed. 11.67

How to protect yourself when you publish

• Be right. If your statement is true and you can prove it (more about that later), you’re safe. In this case it doesn’t matter if your reporting is malicious, unfair, or unbalanced.
• Be able to show that you’re right: be diligent in your research, and save your documentation.
• If it turns out that you were wrong about something, you can mitigate the damages against you if you take the material down, publish a correction, and apologize. Make sure the apology is honest and sincere: don’t backtrack, don’t make an “attack” apology, and don’t say it was the plaintiff’s fault.

What are the consequences?

Landmark and Elle magazine.
Photo by lgattruth. Some rights reserved.

If you mitigate the damage as described above, by retracting and apologizing, the lawsuit may not happen at all. A typical award for damages is about $70,000, which isn’t really worth suing for. Although the loser may have to pay court fees (something like $120,000), they would typically end up paying only about a quarter of that unless an award for special costs was granted (unusual). If the defendant was very reasonable about mitigating the damage, they might not even have to pay the court costs.

Main legal defences against libel

1. Truth. If your facts are correct and your evidence satisfies the court, then you’re not liable. However, if your statements are difficult to prove, or if you made a mistake and published something that wasn’t true, read on.
2. Fair comment. Remember that a defamatory statement is more or less anything that damages a person’s reputation. Maybe you made statements of opinion that were highly uncomplimentary. For your writing to qualify as fair comment, you need to show that the statement was comment or opinion, that it is your honest opinion, that it’s based on true facts, and that it regards a matter of public interest. If you are proven to be malicious, that defeats this defence.
3. Privilege. In some situations when the communicator and the receiver have an interest and a duty to exchange certain information, that communication may be protected. For example, an employer giving a reference to a future employer is a situation of “qualified privilege.” This defence is lost if the person making the statements is malicious or if the information is communicated beyond the group of people who have an interest in receiving the information. Increasingly, it seems that the public may be the interested party.
4. Responsible publication. This is a relatively new defence that came out of the Grant v. Torstar case (see below). The defendant has to show two things:
   1. The matter is of public interest.
   2. The defendant acted in a responsible way.
   In deciding whether the defendant acted responsibly, a number of factors are considered:
   1. The seriousness of the allegation. More serious allegations require stronger evidence.
   2. The public importance of the matter.
   3. The urgency of the matter.
   4. The reliability of the source.
   5. Whether the plaintiff’s side of the story was sought and accurately reported. How important this is depends on the circumstances, but generally, consulting the person you’re writing about decreases your chances of getting your facts wrong.
   6. Whether the inclusion of the defamatory statement was justifiable.
   7. Whether the statement’s public interest lay in the fact that it was made rather than its truth. This can protect situations like reporting on a libel case, where it would be difficult to avoid repeating the defamatory statement.

Recent changes in Canadian libel law

Grant v. Torstar in 2009 was the case that resulted in the new guidelines for responsible journalism or responsible communication. The Court commented:

The existing common law rules mean, in effect, that the publisher must be certain before publication that it can prove the statement to be true in a court of law, should a suit be filed. Verification of the facts and reliability of the sources may lead a publisher to a reasonable certainty of their truth, but that is different from knowing that one will be able to prove their truth in a court of law, perhaps years later. This, in turn, may have a chilling effect on what is published. Information that is reliable and in the public’s interest to know may never see the light of day.

—paragraph 53

Elton John has received damages for libel twice.
Photo by Sarah_Ackerman. Some rights reserved.

Wikipedia summary of Grant v. Torstar

Supreme Court of Canada Grant v. Torstar

Other considerations

Malice

“Actual malice” in a libel case is not personal dislike or even a personal vendetta. It means that the person making the statement had an ulterior motive or a lack of honest belief in the statement.

Repeating a statement

Quoting someone else does not distance you from liability. The contentious statement in the Grant v. Torstar case was a quoted statement from a local resident. The resident made the statement, but the newspaper was sued for printing it.

Differences between Canadian and US law

Because libel law is different in the United States, previous publication in the United States does not mean that a statement is safe to publish in Canada. In particular, be aware that public figures are not given different treatment in Canadian libel law.

Libel on the internet

Linking to libellous content is generally safe, but if someone tells you the linked content is libellous and you refuse to take the link down, you may be considered to be endorsing the libellous content.

You are responsible for the comments on your blog. You should moderate your comment feeds. Even if a libellous comment slips through, having a moderation process in place will count in your favour.

Web pages are considered to be published globally. Yikes.

Resources and further reading about libel

The Tyee on the Furlong libel case (Update: decisions for Furlong v. Robinson and Robinson v. Furlong)

Damage Awards for Libel in Canada

CanLII: free Canadian law on the internet

Quicklaw is a pay research service