Copyright Issues for Churches and Charities: What You Need To Know

Transcription

1 CCCC Leadership and Stewardship Conference Mississauga September 24, 2013 Copyright Issues for Churches and Charities: What You Need To Know By Colin Thurston, B.A., J.D., Trade-mark Agent Carters Professional Corporation A. WHAT IS COPYRIGHT? In simplest terms, copyright means the right to copy Only the owner of copyright (often the creator of the work) is allowed to produce or reproduce the work in question or to permit anyone else to do so Copyright law rewards and protects your creative endeavour by giving you the sole right to publish or use your work in any number of ways You may also choose not to publish your work and to prevent anyone else from doing so The Copyright Act contains many variations and exceptions to this basic principle, and copyright issues are often complex 2 3 B. WHY DOES COPYRIGHT MATTER? Copyright affects every one of us on a daily basis, both at a personal as well as at an institutional level The shows that we watch have copyright in them, as does the music we listen to and the various forms of art and media that we appreciate As media and information has become increasingly available to us, whether it be through the television, the newspaper, radios or the internet, our opportunities to access and enjoy media and information has increased Technology has vastly increased our potential to violate copyright ownership in such media 1

2 4 Churches, charities and non-profits are faced with Copyright issues every day Such organizations may be particularly likely to come into contact with issues involving copyright law, as one of the primary goals of churches, charities and non-profits is often the dissemination of information in furtherance of a religious, charitable or non-profit purpose The dissemination of this information usually involves heavy reliance upon literature, art, music and other media, both in print and online 5 Almost invariably some form of copyright ownership exists in the literature, music, pictures and other forms of media used by churches and charities, Establishing a legal right to use these types of works therefore becomes of vital importance Reproducing or performing a copyright protected work without the permission of the copyright owner can violate a copyright owner s rights to control reproduction of their work This type of violation is referred to as infringement, and copyright owners have legal remedies under the Copyright Act against those who have infringed their work 6 Churches and charities will use or produce many types of works that are subject to copyright law Publications used to promote or further a cause or purpose Media that is used for fundraising and soliciting donations Educational courses - written material for students and instructor resources such as activity outlines Artistic work including crests, design logos and other marketing material to appeal to donors, members, the public 2

3 7 Sometimes the church or charity is the copyright owner, other times it will be using somebody else s work A church or charity that uses literature, music, videos, art on its website, in its publications, at weekly sermons, or in videos or other media that it prints or posts online A church or charity that has employees that write, perform and create original creative works for the organization to use An association or group that writes, performs or produces creative works for associated churches and charities to use (e.g., program or educational materials) 8 The effective management of copyrights belonging to a church or charity can help to protect and grow the assets of the organization, including its brand Lack of awareness of copyright issues can result in: The mismanagement of potentially valuable intellectual property assets Increased risk of liability to third-party copyright owners for unintentional infringement of their works Therefore, an awareness of copyright law and how it affects the day-to-day operations of a church or charity is of significant importance 9 C. THE PURPOSE AND FUNCTION OF COPYRIGHT Generally, copyright laws protect owners by regulating some forms of expression in order to give consideration and respect to owners rights Copyright grants rights to creators to prevent the unconsented reproduction and exploitation of original literary, dramatic, musical, and artistic work to which they own the copyright The Copyright Act also recognizes creators moral rights, which protect the integrity of an author s work, including the right to have the work properly credited 3

4 10 One purpose of copyright is to protect an author s right to benefit economically from a work, as well as to permit others to do the same Similar to a patent in some ways, copyright can provide owner s with exclusive rights and control over their work, and serves a purpose in encouraging investment in and creation of new works by allowing creators to derive an economic benefit 11 D. KEY FEATURES OF COPYRIGHT 1. Copyright Only Protects Original Work The word original is key in defining a work that qualifies for copyright protection The work does not need to be new, but must originate from the author, not be copied, and involve some intellectual effort Originality can be tricky to determine and many court cases revolve around the question of whether a work has been copied, even in part, from somebody else s work Copyright Prevents Reproduction Copyright only prevents the reproduction or copying of a protected work. Owners cannot claim infringement if another work was inspired by theirs - it must be directly copied. 3. Copyright Only Protects Expressions Only the manner in which an idea or information is expressed is protected - this must be a fixed manner. Ideas, style, methods of manufacture, schemes, and systems are not protected. 4

5 13 For example, copyright exists in these PowerPoint slides. Copyright does not exist in the information itself. The facts and ideas contained in it are public (i.e. in the public domain) and not subject to ownership. As a result, copyright can be described as a case of form over substance. 4. Neutrality of Content Works are protected regardless of quality, morality, and even legality (i.e. works infringing the copyright of another work are protected from being copied) 14 E. WHAT COPYRIGHT PROTECTS Copyright applies to all original literary, dramatic, musical and artistic works - Each of these general categories covers a wide range of creations, e.g.: a) Literary works: books, pamphlets, poems and other works consisting of text and computer programs b) Dramatic works: films, videos, plays, screenplays and scripts c) Musical works: compositions that consist of both words and music or music only (note that lyrics without music fall into the literary works category) d) Artistic works: paintings, drawings, maps, photographs, sculptures and architectural works 15 F. WHAT COPYRIGHT DOES NOT PROTECT Titles, names and short word combinations are usually not protected by copyright A work or other subject matter for copyright purposes must be something more substantial As copyright is restricted to the expression in a fixed manner (e.g. text, recording, drawing) of an idea, it does not extend to the idea itself Facts, ideas and news are all considered part of the public domain, that is, they are everyone s property 5

6 16 G. EXAMPLES When does copyright apply? Not apply? Title of a publication Table of contents Compilations Domain name Article in a newsletter Layout of a newsletter or periodical Website design In any case where copyright does apply and a work is entitled to copyright protection, ask who is the owner? 17 H. METHODS OF COPYRIGHT PROTECTION 1. Generally Copyright in a work arises automatically and does not require registration Everyone who creates a work can enjoy the benefits of copyright protection Copyright infringement occurs whenever someone does something that is within the exclusive right of the copyright owner without permission Infringement does not require that the infringing work compete in the market-place with the work that has been infringed 18 Most infringement occurs from the reproduction of any substantial part of a work in which copyright exists 2. Automatic Copyright Protection Under the Copyright Act, there is automatic copyright protection for an author if, at the time of an original creative work, he or she is: a Canadian citizen or person ordinarily resident in Canada; 6

7 19 a citizen or subject of, or a person ordinarily resident in, a Berne Convention country, and Universal Copyright Convention country, a Rome Convention country (for sound recordings, performers performance and communication signals only), or a country that is a member of the World Trade Organization; or a citizen or subject of, or a person ordinarily resident in any country to which the Minister has extended protection by notice in the Canada Gazette Copyright protected in Canada will usually be protected in other countries under international conventions, but the laws may vary 20 It is also possible to receive automatic copyright protection if the creator s work was first published in one of the countries included among those who have signed the Berne, Universal Copyright or Rome Conventions or the World Trade Organization agreement, even if the creator was not a citizen or subject of Canada, or of one of those countries 3. Registering for Copyright Protection While an original work automatically receives some protection as soon as it is created, the only official record that a specific author created the work is if the copyright is registered 21 Registration of copyright is evidence of ownership. For this reason, registration may be advisable in some circumstances so an official record is established showing that the author created the work If a copyright is registered, the party seeking to dispute the copyright bears the onus of leading evidence to the contrary This presumption of validity is a huge advantage of registration, particularly for charities and non-profits which experience a high rate of turnover of personnel, and which might therefore find it difficult to lead other evidence of copyright ownership at a later date 7

8 22 To register a copyright, an Application for Registration of a Copyright in a Work must be completed online or sent to the Canadian Intellectual Property Office ( CIPO ) A copyright owner should also make sure to register all assignments or licences. Ensuring that there is documentation and proper evidence of ownership, assignments and licences will tremendously help in any subsequent legal action. While registration of a copyright generates a certificate of registration that creates a presumption in that organization s favour, registration is never a guarantee against infringement. 23 As well, registration is no guarantee that the claim of ownership will always be recognized as legitimate 4. Notice of Copyright Ownership Another way of protecting a copyrighted work is for an author to mark his or her work with a notice of copyright ownership This can be done on a parallel basis with registering the copyrighted work, or it can be done even if the organization plans to rely on the automatic protections of the Copyright Act While the Copyright Act does not deem it necessary that copyrighted works be marked to receive protection, the Universal Copyright Convention provides for marking with the symbol, the name of the copyright owner and the year of first publication E.g. Colin J. Thurston, Marking works is a proactive way for a church or charity to demonstrate to others that it is aware of its rights pursuant to the Copyright Act, and this alone may serve to deter potential infringers from violating the copyright Some organizations will include contact information for users to obtain authorization to reproduce the work 24 8

9 I. COPYRIGHT PROTECTION AND EXCEPTIONS When deciding which copyrights to protect, consider the duration of the copyright, as well as various exceptions to copyright infringement The exceptions will also help churches and charities know when they may use copyrighted content without a license 1. Duration of Copyright The general rule is that copyright lasts for the life of the author, the remainder of the calendar year in which the author dies, and for 50 years following the end of the calendar year After that, the work becomes part of the public domain Infringement, Generally Since a copyright gives you the sole right to produce or reproduce your work, through publication, performances, etc., or to authorize such activities, anyone who does such things without your permission is infringing (i.e. violating) your rights Naturally, if you publish, perform or copy anyone else s work without their permission, you are infringing their rights One form of infringement is plagiarism - i.e. copying someone else s work and claiming it as your own Using a substantial part of someone else s work, e.g., copying a novel, and simply changing the title and names of the characters Exception Fair Dealing The Copyright Act provides a fair dealing exception where copying is for one of the following purposes: Research, private study News reporting Criticism or review These fair dealing exceptions were expanded in 2012 to include: Education Parody or satire If dealing in a work was for one of these purposes, then there may be no infringement if the dealing was also fair. The exceptions are not absolute. 9

10 28 4. Exception Private Purposes The Copyright Act provides an exception for certain private uses or purposes: Non-commercial user-generated content, reproduction for private purposes, fixing signals and recording programs for later listening or viewing, and backup copies 5. Exception Educational Institutions, Libraries, Archives and Museums These institutions are given certain exceptions as long as their use of the copyrighted materials is undertaken without motive of gain Exception Religious, Educational, Charitable or Fraternal Organizations This exception permits specific organizations to use copyrighted works for musical performances The use must be in furtherance of a religious, educational, or charitable object The use of copyrighted musical performances may not be used as a fundraiser without permission, as fundraising is not considered a charitable object Exception User-Generated Content (AKA the YouTube Exception ) Individuals may use sections of copyrighted material in new works without a license, as long as they meet the following requirements: It is done solely for non-commercial purposes When reasonable, the original source is mentioned There are reasonable grounds for the individual to believe that the existing work was not infringing copyright The new work does not substitute or have negative impact upon the original 10

11 31 J. EMPLOYEES, VOLUNTEERS AND COPYRIGHT 1. Using Third-Party Material Generally, employees and volunteers of a church or charity will not know the ins and outs of copyright law Employees and volunteers may not consider whether copyright applies to a work, or may assume that an exception applies or that they will somehow be personally exempted from responsibility If an employee or volunteer infringes copyright in the performance of their duties for the organization, then it is ultimately the organization that will be held responsible in most cases Copyright Policies A church or charity can help to reduce the risk of copyright infringement by creating a Copyright Policy for employees and volunteers to follow A Copyright Policy should be accessible and visible in areas where copying is likely to take place, such as near photocopiers and printers and on the desktop of computers that are used by the organization s employees If in Doubt, Obtain Written Permission The question of whether copyright applies, or whether or not an act is an infringement, is often complex and answers will not always be certain Even if you believe there is an exception that applies, the owner may not agree Look for works that contain express permissions that allow others to use or reproduce the work Where the work does not contain a license or permission, it is usually best to seek express permission before copying or reproducing someone else s work 11

12 34 K. EMPLOYEE WORKS AND OWNERSHIP 1. Generally The author of the work first owns the copyright. There are some exceptions: The author must be human Employers of authors working under employment usually own those copyrights 2. Authorship The author is whoever writes, produces, or otherwise creates a creative work Corporations cannot be authors There can be multiple authors for one work Employees If the author is employed under a contract of service or apprenticeship, the employer usually automatically owns the copyright to the work The author retains moral rights to the work There are two requirements for this to happen The employee must be employed under a contract of service or apprenticeship The work must have been made in the course of that employment or apprenticeship Employees vs. Independent Contractors One difficult question that frequently emerges is whether a person is under a contract of service or a contract for services While the general rule is that the author of a work is the first owner of copyright, the Copyright Act states that if the work is made in the course of employment under a contract of service, copyright belongs first to the employer It is not necessary for there to be any transfer agreement or licence - copyright vests in the employer automatically 12

13 37 Independent contractors and quasi-employees are not usually considered to be under a contract of service Volunteers are not usually considered to be employees If the parties consider their relationship to be one of independent contractors for purposes of employment or tax law, they cannot treat it as an employment relationship for copyright purposes To illustrate, in the decision Hanis v. Teevan, a university professor claimed the copyright in computer programs written by consultants 38 Consultants had assigned copyrights to the professor However, the consultants were held to be employees of the university, making the university the owner of copyright in their works. The assignments from the consultants were ineffective as the copyrights in works created by them vested in the university Disputes can arise between employers and employees over ownership of copyright works Often, churches or charities will be surprised to learn what they do not likely own copyright in (volunteer works, contracted work) 39 Situations to watch for: Volunteers Independent contractors Web designers Logo designers With anyone who is not an employee, the church or charity will need to obtain an assignment of rights if it wants to own the copyright in works authored by that person Include waiver of moral rights Even with general rule regarding employees, it is recommended to clarify in writing, often by including appropriate terms in the employment contract 13

14 40 5. Assigning or Licensing Copyright to Others Copyright can be assigned or licensed, either in whole or in part, with a variety of different limitations imposed on the grant An assignment or license of copyright ownership can be limited to only certain rights of ownership, such as the right to publish, or translate This situation of a limited assignment or license is often encountered in publishing contracts where an author has assigned over her rights in a certain country only to one party, while assigning over other rights to a different party in a different jurisdiction Assignment Must be in Writing Pursuant to the Copyright Act no assignment or grant is valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made... Assignment is not implied or assumed, can only be made in writing An agreement to assign works under a contract may not be sufficient. While this can create a contractual right for a work to be assigned later, the actual assignment only takes place in writing after the work has been created 42 K. MORAL RIGHTS In addition to the general principle that the author of the created work is the first owner of the copyright in that work, the Copyright Act also recognizes and protects moral rights, which belong solely to the author of the work and exist independently of copyright Therefore, even when the copyright in a work is assigned, the author of an original work continues to have moral rights protected under the Copyright Act 14

15 43 These rights include the rights to: Attribution: being named as the author or the right to remain anonymous Integrity: protecting the work from being distorted, mutilated or otherwise modified if this would prejudice the author s honour or reputation Association: control over the use of the work in association with a product, service, cause or institution that is prejudicial to reputation 44 While copyright may be bought, assigned or licensed, authors generally retain their moral rights, which cannot be transferred to third parties In short, moral rights can be waived but not assigned Therefore, it is better to obtain a broad waiver at the beginning of a project rather than trying to track down a waiver from each author as needed in the future Misunderstanding or even confrontation can arise between over the re-use or modification of another person s work 45 L. LICENSING CONSIDERATIONS 1. License should be in Writing While work by an employee or other work for hire can often be assigned to an organization, using work created by a third party usually requires a license Other organizations that want to use a work created by the church or charity may request a license to use the work Sometimes a license to use a work can be implied from the circumstances under which a work is created or provided, but it is best practice to always obtain evidence of a license in writing 15

16 A license to use an individual work can be granted by the owner of the work A license sets the terms and conditions for acceptable use, some factors to consider include Geographic region Duration Purpose Medium, language or translation Before a church or charity licenses a work to a third party, it is essential to confirm that the church or charity has obtained ownership of the work permitting it to do so. Otherwise, the church or charity may be held liable for infringement by the licensee Licensing can be used to protect and promote a church or charity, its purposes and its brand and reputation Work itself may be of great value Control and protect an association or affiliation of churches or charities internationally, by controlling the use of materials used under license from church or charity in Canada Control and protect trade-marks Especially a unique version of a common symbol Collective Licensing If the only way to obtain a license was to contact each owner in every case, copyright issues would lead to impractical and inefficient use of resources in non-profit and for-profit sectors The Copyright Act provides for collective administration of owners rights by collective societies Collective Societies represent a common interest group or type of copyright owner and sell licenses and collect royalty payments on their behalf Purpose is to allow one-stop shop 16

17 49 Some relevant examples include: Society of Composers, Authors and Music Publishers of Canada (SOCAN) Access Copyright, The Canadian Copyright Licensing Agency Christian Video Licensing International (CVLI) Christian Copyright Licensing Inc. (CCLI) Other listed on the Copyright Board of Canada website at: 50 M. RECOURSE FOR INFRINGED COPYRIGHTS It is usually not advisable to begin legal action right away It is possible that the infringer simply did not know that the work was protected, or knew that it was protected but believed that what was being done with the work was completely legal 1. Cease and Desist Letter Send a cease and desist letter to the infringer, informing them that the organization owns the copyright to a particular work, and outlining why and how the copyright is being infringed 51 The letter should also ask that the infringer stop violating the copyright If the copyright owner is willing to license the copyright or assign it for a period of time, it may be beneficial to note that in the letter as well so this possibility can be left open for discussion 2. Formal Legal Action If the infringer continues to violate the copyright, then it may be appropriate to commence formal legal action Remedies for copyright infringement can include damages awards or injunctions to prohibit the infringing conduct 17

18 52 3. Damages Copyright owners have the option of receiving damages based on the actual damages incurred (including lost profits), or they can receive damages based on prescribed statutory amounts Civil remedies can also include accounts and delivery up and otherwise that are or may be conferred by law for the infringement of a right Additionally, the Copyright Act creates criminal offences for copyright infringement, and imposes penalties which include, for indictable offences, fines of up to $1 million and imprisonment for a maximum term of five years Injunctions Copyright owners may seek interlocutory injunctions pending trial or they may seek permanent injunctions It is important for copyright owners to know, before incurring costs, that if the alleged infringement consists of a single, isolated action, it is less likely that a court will grant an injunction If the defendant s alleged infringement is occurring on a continuing basis, there may be more of a justification for seeking an injunction Delivery Up A copyright owner may initiate proceedings, even before obtaining judgment, to recover possession of all infringing copies of the copyrighted work and all materials used or intended to be used for the production of infringing copies This may effectively prevent the defendant from further infringing activities, but it is different from an injunction in that such an order does not prevent the defendant from once again infringing copyright in the future by creating more infringing copies or acquiring new materials to produce infringing copies 18

19 55 N. COPYRIGHT ISSUES FOR CHARITIES 1. General Issues As already discussed, copyrights can be a significant asset if effectively managed, but can also result in liability to an infringing organization Important questions for churches and charities to ask are: Whether the organization has the rights necessary to carry out its activities without infringing on the rights of others? Whether the organization possesses good title to the copyright that it considers its owns? 56 For some charities and not-for-profit organizations (e.g. research or arts organizations) copyright concerns will be central to their operations These organizations may create and deal with important copyright works such as literature, music, films or dramatic works Persons managing charities should have an understanding of copyright issues so that they can take the necessary steps to protect the organization s rights and to avoid infringing the rights of others 57 Charitable organizations may need to consider their copyright practices in relation to: Use of licensed software Their website content - creating the content and acquiring rights to other s content Fundraisers/special events - these may involve development of graphics and other printed material and use of music or other entertainment Promotional merchandise, e.g., t-shirts, coffee mugs, posters, video or digital recordings 19

20 58 2. Charitable Fundraising on the Internet Most charities now rely on the Internet as a way of reaching potential donors All intellectual property laws are applicable to the Internet, including copyright law, and unauthorized use of material created by someone else may expose a charity to an action for copyright infringement Disclaimer This powerpoint handout is provided as an information service by Carters Professional Corporation. It is current only as of the date of the handout and does not reflect subsequent changes in the law. This handout is distributed with the understanding that it does not constitute legal advice or establish a solicitor/client relationship by way of any information contained herein. The contents are intended for general information purposes only and under no circumstances can be relied upon for legal decision-making. Readers are advised to consult with a qualified lawyer and obtain a written opinion concerning the specifics of their particular situation Carters Professional Corporation 20