The imposition of social distancing and self-isolation measures to slow the spread of COVID-19 means that many of us are staying home far more than usual. Not surprisingly, consumption of digital media has spiked as we all turn to movies, music, and video games to stave off the boredom (and to occupy our kids so we can get some work done!).
Some digital media outlets have even made certain paid content available for free for the duration of the shutdown. HBO is offering some streaming content for free. Moog and Korg are giving away music-creation apps. LeVar Burton will read to you on Twitter! And Andrew Lloyd Webber is free streaming a musical a week on YouTube starting this Friday!
At the same time, some of us have become content creators for the first time. Teachers and professors are delivering their lectures by streaming video, bands are livestreaming their concerts, and ordinary folks are using all their newfound spare time to make videos and memes to share with the world.
This increased activity in the consumption and creation of digital media makes it a prime time for a copyright law refresher. While our media consumption habits adapt to this new reality, and new copyright challenges surface, the laws that govern the creation and use of copyright-protected material remain the same.
What is copyright?
Copyright is a form of intellectual property. The conditions for the existence of copyright and the protections that copyright affords are all set out in Canada’s Copyright Act. Copyright protection applies to a wide variety of works, including:
- literary works such as books, pamphlets, computer programs and other works consisting of text
- dramatic works such as films, videos, plays, screenplays and scripts
- musical works such as compositions with or without words
- artistic works such as paintings, drawings, maps, photographs, sculptures and plans
- sound recordings and musical performances
When a work is protected by copyright, only the owner of the copyright can make copies of the work, post the work online, or otherwise publish the work (i.e. printing, broadcasting, etc.)
Copyright owners can grant other people permission to use the work. This permission is usually given in exchange for payment, and it often comes with well-defined restrictions.
Who owns the copyright?
Copyright ownership takes effect automatically. As soon as you write a poem, record a song, or tape that scrapbooking webinar from your condo – as long as the work is original – you own the copyright in it; there are no additional steps required.
Contrary to the common misconception, owning a copy of a work does not grant ownership of the copyright in that work. Simply owning a copy of Harry Potter and the Order of the Phoenix does not give you permission to make and distribute copies of the book. It also does not give you permission to perform dramatic reading of the book on YouTube (if boredom finally drives you to such lengths).
If you want to use a copyright-protected work in this way, you will need permission from the owner.
How long does copyright last?
Copyright protection does not last forever. Depending on the nature of the work, copyright protection expires 50-80 years after the death of the author. So feel free to post that one-woman dramatization of Wuthering Heights you have been working on.
Do I need permission? How do I get it?
Unless a statutory exemption applies (more on these below), permission from the copyright owner is required to copy or distribute a work. When you purchase a movie from Apple and save a copy to your device, you are doing so with the permission of the movie studio, which has struck a deal with Apple to allow Apple to negotiate that permission on the studio’s behalf.
In other cases, it is not so simple. Sometimes the copyright owner cannot be identified or contacted. In these cases, the safest course is to avoid reproducing or distributing the work unless you are sure the use is covered by an exemption in the Copyright Act.
For example, even the great LeVar Burton needed permission from authors and publishers before he could read their works aloud online.
Forging ahead without permission can lead to real trouble.
The Copyright Act establishes a number of use-cases that are exempt from claims of copyright infringement.
The broadest of these exemptions is known as “fair dealing” and it covers uses such as news reporting, research, and parody or criticism. The fair dealing exemption has strict conditions for its application that are set out both in the Act itself and in the jurisprudence that has developed in this area.
More recently, Parliament has introduced a number of narrow exemptions intended to cover some of the ways that copyright works are used by ordinary Canadians. For example, there is an exemption that covers the common practice of “time-shifting”, that is, recording a show for later viewing. Also, the emerging practice of embarrassing oneself on YouTube has its own exemption. So long as the copyright-protected work is used for non-commercial purposes and is intended to be distributed to family and friends, it is not an infringement of copyright to record yourself belting out Phil Collins’ In the Air Tonight, complete with wicked air drums for the signature fill.
The important thing to remember with these specific exemptions is that the requirements for their application are spelled out in detail in the Act. Each of these requirements must be met for the exemption to apply.
Who, me? A copyright owner?
Businesses, schools, and entrepreneurs have adapted quickly to our new socially-distanced reality. Teachers, lawyers, university professors, fitness instructors, chefs, and more have begun offering their services virtually through the Internet. Gowling WLG joined the movement early with an open webinar (now archived for on-demand access) about employment-related issues resulting from the COVID-19 shutdown.
The rules in the Copyright Act apply across the board. Anyone who creates original content (academic lectures, law firm webinars, home kitchen cooking shows) owns the copyright in that content.
If you find your content going viral, it is a good idea to make sure that appropriate copyright restrictions are in place. You will want to make sure that you limit unauthorized copying and distribution in order to capitalize fully on the value that your content can generate. Popular video-sharing sites offer user-friendly monetization options for amateur content creators, but these services typically require the creator to give up a large measure of control. It is important to know the terms and conditions before committing to a distribution platform.
The bottom line
Here are the key takeaways from this article.
Most of the digital media you consume and create is protected by copyright. Access to the media itself is not the same as ownership of the copyright.
Just because you have been granted free access to content does not mean you are free to download, copy, or redistribute that content. Licences (even free ones) are confined to their terms. Before you do something with digital media, make sure you have the necessary permission from the copyright owner.
If you are making content to distribute, make sure you own or have permission to use each element you incorporate into your masterpiece. And if you see your creation going viral, remember that you have the right to control the use of any content you create.
Personal and non-commercial uses can often benefit from exemptions in the Copyright Act. As long as you are sure you have complied with the statutory requirements, let your creativity shine. If the work is old (and you are sure the author has been dead for 50 years or more), then it is in the public domain and all copyright restrictions have expired. If in doubt, contact a collective society or a lawyer.
Copyright basics are fairly simple, but – beyond the basics – copyright law can be quite complex. It is always best to contact a copyright lawyer if your business involves the creation or use of copyright-protected content.
By Matthew Estabrooks and Barbara Walczak, Gowling WLG