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Copyright after Bill C-11

2012 December 20

[Note: this post is modified from  a piece I wrote for the November/December 2012 Outdoor Writers of Canada newsletter, Inside Outdoors.]

The Canadian freelance writing profession is under serious attack these days. Our basic right to earn a living from the work we do is under attack from our own federal government as well as schools, libraries and provincial education departments. With the passage of Bill C-11 this past year, it will become increasingly difficult for writers to earn a living from the sale of their work. Unless you’ve been living in a cave, you know Bill C-11 changed the Copyright Act to include education copying under fair dealing where the copying can be done without compensating the creator or publisher. Unfortunately, neither “education” nor “fair dealing” were fully defined in the legislation, which means the courts will have to do it. This will take years, so what should you do in the meantime?

Declare Your Copyright
In Canada, your copyright is automatic as soon as you write something and put your name on it as the creator. When you sell your work for publication, you are not selling your copyright in that work (at least you shouldn’t be); you are selling the right to publish it. In effect, you are granting a licence to a specific person or company to publish once in a specific format and geographic region. That licence can be in the form of a written contract or a verbal agreement. Of course, a written contract is best, but many of us deal with magazine and other periodical publishers where agreements are often verbal and certain assumptions are made about licensing the work. Over the decades, case law has determined that if no formal agreement has been made, it is assumed the creator is granting the publisher “First North American Serial Rights” or FNASR.

With FNASR, you are granting the publisher the right to publish your work once for the first time in North America. You retain the right to take the same piece and publish it a second and subsequent times with other publishers in that geographic region. However, you cannot do this until the first right has expired (usually the duration of the published piece in the market place). If you want to grant other rights or further restrict those rights, you must state so either in a written agreement (such as a mutually signed letter) or on the manuscript. For example, you could grant a licence to publish for the first time only in Canada by printing at the top of your manuscript “First Canadian Serial Rights Only” (thus allowing you to grant first rights in the U.S. and elsewhere); or if you have already published the piece for the first time, and have negotiated a subsequent publishing, you should place at the top of that manuscript, “Second North American Serial Rights Only”. All that said, publishers do have the right to get back to you and negotiate something different (most will want FNASR).

When I first started in this business some 35 years ago, it was common practice to put at the top of new manuscripts submitted to periodical publishers, “First North America Serial Rights Only”, even though this was generally understood. It was considered the professional thing to do, indicating to the publisher that you understand your copyright and what you are licensing. I continue this practice to this day and strongly recommend all writers do so. Why? When it comes to copyright in the absence of a formal written agreement, your submitted manuscript is a legal document (you should always keep a dated, hard copy of that manuscript in your files). If the publisher, for whatever reason, should re-publish or sell your work when you did not grant a licence to do so, your copy of that manuscript is your proof of what rights were indeed granted. (This was the basis upon which Heather Robertson launched a successful class-action law suit in 2006 against three major media companies who had placed articles, originally sold for print publication, into electronic data bases without permission or compensation.)

Why would this be important under the new, as yet undefined, copyright legislation? Because we don’t know how this is going to turn out in court. However, if previous Supreme Court rulings are any guideline, chances are good the free educational copying of more than short excerpts of works will be restricted. If that is indeed the case (and not just my hope), then the rights you originally granted the publisher could be important, especially in cases where your entire article/book/video was used in course packs or other mass copying for which you were not compensated.

Copyright Notice
Many writers these days publish their own work either in print or on blogs or other web sites. With the traditional publishing industry in turmoil, and digital publishing so much easier, self-publishing is the natural course of events for many who want to be published and read. With so much material on the web and elsewhere and the attitude of many people browsing the web that anything on it is free for copying and appropriation, it is important that any self-published work has a copyright notice on it to declare the author’s intent on protecting his or her interest in the work.

Of course, if you are publishing on the web at a site freely available to the public, you are automatically agreeing to some free use of your work—such as viewing on a computer (smart phone, iPad) screen and printing for personal use. However, you want to protect your right to be compensated if someone wishes to use your work commercially (sell to someone else). A copyright notice announces that intent. A typical notice (usually placed near the top of the article) might read “Copyright © 2012 John Q. Writer” or “© 2012 J.Q. Writer” or as part of the byline, “by John Q. Writer © 2012”.

The notice won’t necessarily stop unauthorized use, but it will cause the more thoughtful (such as educational administrators) to seriously consider the consequences of copying your work to sell to someone else (e.g., students). I put many of my previously publishing articles on my web site or blog, and place a copyright notice on each. Over the years, I have been contacted several times by people wishing to use my work, I’m sure as a direct result of my copyright notices. So, the notices work. They could be very important if an educational institution, for example, should copy your work without giving you compensation and the Supreme Court determines that such copying is illegal. Your notice will back up your original intention to protect that work. It’s a simple thing to do.

We are in a long war to protect our right to be properly compensated for the work we do. Although Bill C-11 passed with the educational provisions intact, we continue to win many of the battles in court through the efforts of Access Copyright. As the beneficiaries of those efforts, we must do our part to ensure we understand those rights and protect them.

From → Copyright, The Biz

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