What is the point of copyright?

While our last post might have led to some ambiguity on this point, copyright does not exist to protect the Disney corporation’s exclusive rights to Mickey Mouse. Maybe an introduction to what copyright entails will be in order.

Copyright applies to all “literary and artistic works” as soon as they are created – even if their creator has no intention of ever marketing or circulating them. Copyright laws are intended to protect creators’ economic and moral rights over their own creative work – and are applicable and enforceable to works whether claimed by the author or not. Copyright is automatic!

What are economic and moral rights?

By economic rights, we mean the rights of a creator to market or license their work for redistribution or sale exclusively. This right can be sold, ceded, or negotiated to others. However, without obtaining permission from the author, copyrighted works may not be sold or redistributed by any other party.

Moral rights are recognized in many jurisdictions, and provide the author with mechanisms to protect the integrity of their work. Unlike copyright, moral rights do not pertain to the right to economically exploit a creative work. Instead, moral rights recognize the author’s personal connection with their work, their right to be recognized as the creator, and their right to prevent their work from distortion.[1]

The nature and extent of moral rights varies dramatically across legal contexts. A famous case in Canadian law is Snow v. Eaton Centre (1982), which occurred when artist Michael Snow sued the Toronto Eaton Centre shopping mall for displaying red Christmas bows around the necks of the fiberglass geese sculptures they had purchased from Snow (Figure 1). Although the sculpture was owned by the mall, Snow had not ceded his moral rights to it, and argued successfully that the bows had trivialized his work and damaged his reputation as an artist.[2]

Figure 1 Michael Snow's Flight Stop in the Toronto Eaton Centre. Photo by Jennifer Morrow (Flickr), and licensed under a CC BY 2.0 license.

What is copyrightable?

Most creative works are copyrightable. The Berne Convention, the basis of most international copyright  law, defines the literary and artistic works it identifies as copyrightable as including:

every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.[3]

Once a work is created in a stable form, it is eligible for copyright protection. Software is considered to be a literary work for the purposes of copyright and is still protected under the (admittedly dated) text of the Berne Convention.[4]

Is copyright all I have to worry about?

Copyright is one legal mechanism used to protect intellectual property, but not the only one.

Patents protect inventions, as opposed to protection of creative or intellectual work protected by copyright. Patents typically must be registered and give inventors the right to commercialize their creations exclusively for a limited period of time.[5]

Trademarks are used to protect the public from counterfeits of branded products. This category of law protects brand icons and names, ensuring that if I wanted to market, for instance, a refreshing ginger-infused soda, I could not do so under the trade name “Canada Dry.” Unlike copyright, trademarks typically do not expire. [6]

Is copyright endless?

Any work which is copyrighted is only protected for a limited term. As mentioned in our last post, this is typically the life of the author + 70 years in the United States or in jurisdictions influenced by it (e.g. Canada). When a work’s copyright expires, the work enters the public domain. This is the law’s way of recognizing a common cultural heritage which cannot be held exclusively by any individual. When a work is in the public domain, anyone can do as they please with it – including redistribute or rework the material as they see fit, without owing payment or needing permission from the creator.

Figure 2: Noseferatu (the 1922 film) is currently in the public domain in the USA. When released, however, the film fell afoul of copyright due to its reuse of the story from Bram Stoker's Dracula (1897), and all copies were ordered to be destroyed by courts as a result. Image from Wikipedia (public domain).

Which works are in the public domain is often a complex question, varying across jurisdictions and for different works. A famous example is Frank Capra’s A Wonderful Life, which entered the public domain in the mid-1970s due to a failure of the studio to renew the copyright registration under then-current laws. For a detailed chart helping to determine the copyright status of different works in the United States, see the helpful guide from Cornell University Library.[7]

What can I do with copyrighted materials?

While copyright may seem to only protect creators’ rights, there are important exceptions which allow for users of copyrighted works to use and circulate protected content within limits. In Canadian law, “fair dealing” clauses within the Copyright Act allows for the limited reproduction of copyrighted works for the purposes of “research, private study, education, parody or satire.” It also creates exceptions permitting the reproduction of copyrighted works for personal use or for educational purposes.[8]

In US law, “fair use” clauses encode similar rights – however, the legal concepts are different, and Canadian readers should not cite “fair use” when using copyrighted works!

Conclusion

Going forward, a clear understanding of copyright, the public domain, and the relationship between authors and users’ rights will help us understand how Creative Commons licenses can enable us to distribute works in more open ecosystems.

 

 

This post by Scott Cameron is licensed under a CC BY 4.0 Attribution license.

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[1] Creative Commons. 2024. “Copyright Basics.” https://certificates.creativecommons.org/cccertedu/chapter/2-1-copyright-basics/

[2] Sophie Eastwood. 2015. Snow v The Eaton Centre Ltd. (1982) 70 C.P.R. (2d) 105. Cambridge Centre for Intellectual Property Law. https://www.cipil.law.cam.ac.uk/virtual-museum/snow-v-eaton-centre-ltd-1982-70-cpr-2d-105

[3]Berne Convention for the Protection of Literary and Artistic Works. 1886; amended 1979. World Intellectual Property Organization. https://www.wipo.int/wipolex/en/text/283698#P85_10661

[4] For instance, see Government of Canada. 2024. Intellectual property rights in software in Canada. https://ised-isde.canada.ca/site/canadian-intellectual-property-office/en/intellectual-property-rights-software-canada

[5] Creative Commons. 2024. “Copyright Basics.” https://certificates.creativecommons.org/cccertedu/chapter/2-1-copyright-basics/

[6] Creative Commons. 2024. “Copyright Basics.” https://certificates.creativecommons.org/cccertedu/chapter/2-1-copyright-basics/

[7] Cornell University Library. 2024. Copyright Services: Copyright Term and the Public Domain. https://guides.library.cornell.edu/copyright/publicdomain

[8] Government of Canada. Copyright Act RSC 1985, c. C-42, s.29. https://laws-lois.justice.gc.ca/eng/acts/C-42/FullText.html