Intellectual Property (FAQ)

Copyright in a “work,” including a literary, musical, dramatic and/or artistic work, arises by virtue of creation, provided it is original and fixed, and so long as it is not merely an idea, fact or short title. Although not required by law, copyright could be protected two ways:

• By marking all copies of the work with the © symbol, adding the year of creation (or publication, if published), and the owner’s name. This is called the copyright claim.
• By registering copyright in the work in Canada at the federal Copyright Office. This is simple and inexpensive. Copyright can also be registered at copyright offices in other countries.

Copyright does not protect an idea. It only protects the expression of the idea, whether as a literary, musical, dramatic and/or artistic work. Copyright protects only fixed works, not unrecorded verbal descriptions. Therefore, the best way to prevent an idea from being stolen is to keep it a secret. If a story idea is disclosed, it should be in writing and marked with the copyright claim. The creator could go further and register the work at the federal Copyright Office. In summary, a creator cannot control the actions of others and cannot prevent theft. However, a creator can take steps to protect their works.

Canada is a signatory to the major copyright law conventions of the world. Generally, therefore, the rights of authors and copyright owners protected by Canadian copyright law must be recognized by the other signatory nations which are also treaty members, just as if the work was covered by the law of the treaty member’s country. For more specific advice about the law in a particular country, it is best to consult a lawyer.

The most important provision to look for is the grant of rights. Would an author knowingly part with their entire bundle of rights? Only if the compensation is very great indeed. Therefore, it is crucial to read the grant of rights provision carefully (see below for a fuller discussion). Another provision to look out for is the clause setting out the representations and warranties, where the author is often asked to overpromise on the content of the work (for example, guaranteeing the work is not libellous). Another provision to look for is reversionary rights: there should be a provision whereby the rights granted to the publisher “revert” to the author if the publisher fails to publish within a certain time frame or goes out of business.

The grant of rights clause should read: “the author grants the publisher the right to publish the work.” Ensure the grant of rights section does not contain language whereby the author “assigns” or “transfers” to the publisher “their copyright” or “all of their rights” in the work. That would be equivalent to selling the entire bundle of rights to the publisher, instead of giving permission to use one or more strands.

The publisher is asking to be the first to publish the literary work. When this language appears in connection with an article that will appear in a serial publication such as a newspaper, that sometimes allows the writer the freedom to publish it elsewhere once the first publication of the work has appeared.

The publisher expects it will be the only party able to publish the work, which is often what the author intends in any event. However, it can mean the creator is not allowed to publish excerpts of the work on the creator’s own website. It is therefore important to clarify that point.

Along with the right to publish, the grant of rights clause may often list other rights, sometimes called “subsidiary” rights, such as the right to translate or abridge the work, or the right to turn the work into a cinematographic or dramatic work. A careful reading of these additional grants is worthwhile to ensure there are no surprises. Other commonly requested rights are “electronic rights.” That term is so vague that it arguably covers all future forms of publication. An author would be prudent to reword that phrase, therefore, so it means solely the right to publish the work as an “e-book.”

While copyright protects a creator’s economic rights in a work, moral rights aim to protect non-economic rights: the right of paternity (to be named as author, use a pseudonym, or remain anonymous), the right of integrity (to prevent modification of the work in a way that harms the creator’s reputation), and the right of association (to prevent the work from being used to promote a certain product, service, cause, or institution). A publisher could ask for moral rights, but technically, they cannot be sold. They can only be waived. Even if a creator sells the copyright in a work, they will often refuse to waive their moral rights.

Subject to a few exceptions within the Copyright Act, you may not use copyright protected work in your writing, even if with attribution, unless you have been granted permission from the copyright owner. Here are a few exceptions:

• Work that is out of copyright. Copyright in a work subsists for the life of the author plus 50 years (soon to be 70 years once the new law is proclaimed in force). Assuming the author of a work is alive or has not been deceased for 50 (or 70) years, then the author’s or other owner’s permission to use that work must be sought and obtained.
• Fair dealing exceptions. Consider whether any of the time-honoured exceptions of research, private study, criticism and review, and news reporting, applies to your work. Further, if your work is satire or parody, then you likely fall under a fair dealing exception. Another recently added exception, educational purposes, is more controversial and should not be relied upon. The breadth of this exception has not been determined. You should seek a lawyer’s opinion before assuming fair dealing applies. Even if fair dealing applies, “giving credit,” or attribution rules, may well apply.
• Non-commercial user-generated content. This is sometimes called the “mash-up” exception, so-called to protect “mash-ups” of video and audio clips from many sources. However, it’s conceivable that a literary work could also be a “mash-up.” Many conditions are attached to this exception—the first one being that no income can be earned from the copyright-protected work. Again, seek a lawyer’s opinion before assuming this exception applies.

The written permission of the interviewees should always be obtained before interview material is used. The written consent form should set forth the specific uses of the interview material. The law respecting privacy rights is still developing and great caution should be exercised in using interview material.

Creators must be mindful of defamation laws, specifically libel with written works. Defamation is a complex area of law, and so the basic premise that “truth is an absolute defence” should not be relied upon. You and your publisher should obtain legal advice before publishing works that could be perceived as reflecting adversely upon another person, or as depriving a person of his or her right to privacy. Even fictional works can be vulnerable to defamation claims.

Copyright does not differentiate between types of publication. The law is the same regardless of the method of publication.

The answer depends upon the wording of the publishing agreement or contract.

If your contract pre-dates the digital era, it’s possible your contract doesn’t mention electronic publication at all. In that case, there is not likely to be an e-book publication right. However, where the contract refers vaguely to the author granting “electronic rights” to the publisher, or where the contract grants broad publishing rights to the work in any media, the author may then wonder whether that includes e-books.

The law in this area is not well settled. A publisher could be justified in distributing a hard copy work in a digital format so long as the publishing agreement contained some reference to electronic rights, and so long as the publisher did not reproduce the article in a format that differs from the original publication. For example, reproducing a book word-for-word may be permissible assuming the right contractual language, but reproducing a newspaper article without the rest of the newspaper in an online publication may not be permitted.

If you are concerned about e-book publication of your work, make sure you locate your publishing contract and show it to a lawyer for advice. You would also wish to look at the payment section of the contract to determine what royalties you would earn on e-book sales. Typically, the percentage owed to the author should be higher than for print publication, since e-book publication is much cheaper. Further, your lawyer will look at the reversionary rights paragraph to determine whether your book is out of print and therefore whether all rights in the book, including electronic rights, have reverted to you.

Copyright covers social media posts so long as they meet the three conditions for copyright protection: originality (a work must result from your own creativity), expression of an idea (not the idea itself), and fixation (the work must be fixed in a material format, such as paper, video and audio recordings, or hard drives and memory cards).

Some social media posts are simply reposting of others’ content, with little original words added. Such posts would not likely meet the condition of originality. Most social media platforms dictate how they may use your social media content. Check the “terms and conditions” page of their websites, which may allow re-posting. The media platform usually has a complaint alert mechanism allowing content owners to report infringements.

Section 3 of the federal Copyright Act states copyright is the sole right to produce or reproduce the work, or any substantial part of the work, in any material form. Section 27(1) defines copyright infringement: to do anything, without the owner’s consent, that only the copyright owner has the right to do. Section 27(2) adds that to distribute a work to such an extent as to affect prejudicially the owner of the copyright owner is also infringement. Putting these concepts together, assuming a substantial part of your work is being used/reproduced/distributed, then your work is infringed and you have the basis to take action. The usual first step is to send a cease-and-desist demand letter. Such letters often work because many infringers are ignorant of copyright law and will cease when informed. If not, then you may elect to commence a lawsuit for copyright infringement. If you have registered copyright in your work before the infringement, the legal action will be simpler. To prove infringement, the plaintiff must show both similarity between the infringed work and the infringing work, and access (for example, the infringer had access to the infringed work).

Using an alternate name, often called a pen name with literary endeavours, is desirable for many reasons, and legally recognized. The moral rights provisions of the Copyright Act state the author of a work has the right to be associated with the work as its author by name, or under a pseudonym, and the right to remain anonymous. The term of copyright protection is shortened where the author cannot be determined, but otherwise, copyright principles apply equally to anonymous and pseudonymous works. Therefore, the author who uses a pseudonym retains copyright in the work. In registering or entering into a contract regarding the work, the author should use their legal name.

The Copyright Act section 3(1)(a) states copyright includes the sole right to produce, reproduce, or publish any translation of the work. Therefore, the author’s consent must be first obtained to produce or publish a translation of their work. Assuming permission is granted, the translation is considered an original literary work. This is because the translator uses their independent labour, knowledge, skill and judgment to create the translation, and is therefore the author and copyright owner of their translation.

To avoid confusion or disagreement, permission to make and publish the translation and the division of copyright ownership in the translation should be addressed in a written agreement.

Ghostwriting is understood to mean writing for someone else who is named as the author; for example, that person’s memoirs. The Copyright Act section 13(1) provides that “the author” of a work is the first owner of the work. Assuming no exceptions to the rule apply (such as work produced in the course of employment, in which case the employer often owns the work), the next question is who is “the author”? Is the author the creator (the ghostwriter) or the person whose story is being told, for example, the person who “owns” the story? No definition of “author” appears in the Act. Furthermore, in the context of ghostwriting, Canadian courts have been silent (except where a written agreement is being interpreted). This legal grey area highlights the importance of a written agreement among the ghostwriter, the individual whose story is being told, and the publisher.

The Copyright Act refers to works of joint authorship, collective works, and compilations:

• A work of joint authorship is produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author.
• A collective work is one written in distinct parts by different authors, or in which works or parts of works of different authors are incorporated.
• A compilation is a work resulting from the selection or arrangement of literary, dramatic, musical or artistic works, or results from the selection or arrangement of data.

The Act does not specifically state how copyright is held in each case. It does provide that if a work is included in a compilation, that does not affect the protection conferred by the Act regarding the copyright. In other words, by contributing a work to a compilation, you do not lose your copyright in that work. That outcome likely applies as well to collective works. Again, it’s best for the two or more authors to sign a written agreement setting out how their copyright ownership is to be shared.

A common theme emerges from this discussion of literary works in which more than one person may have a copyright interest: agree to it in writing!