Lisa Desjardins: It happens all the time. Really, all the time. We're on social media. We see something worth sharing and, with a simple click, we've shared it: someone else's photo, poem, a song. These things, these creative works, are in fact automatically protected by copyright as soon as they are created. Most people respect copyrights when it comes to downloading copies of movies and music, but in other cases, copyrights can be a bit tricky to understand.
With us today is Naomi Zener, lawyer and counsel at Bereskin and Parr, one of Canada's leading intellectual property law firms. Naomi helps her clients understand and protect copyright, a form of intellectual property right used to protect literary, dramatic, musical and artistic works. And yes, this can include sharing someone else's cat photo on Facebook. Welcome to the podcast, Naomi!
Naomi Zener: Thank you so much for having me here today, Lisa.
LD: I'm so looking forward to having this conversation because, we're a wave through the pandemic, and I think most people are using social media a lot and copying things, trying to find things that are amusing to share some light in our otherwise somewhat dull days. We're going to talk about a lot of interesting things today, but before we dive into the internet and copyright, I wonder if you could tell me a little bit about yourself and the kind of work you do in your practice.
NZ: I'd be delighted to. I've been practising for roughly 17 years and I am a, quote-unquote, an entertainment media lawyer, but I'm also a commercial transactional lawyer, where I negotiate and draft agreements across many different industries that are either media and entertainment, media and entertainment adjacent or altogether different. I have a copyright practice where I advise clients across every kind of industry where any creative work, any literary, dramatic, artistic and musical work is created. And those are nice big headers, care of the Copyright Act, but lots of different works fall under each bucket, including computer program software. Those fall under literary, as an example. So I will advise clients on licensing those works or establishing copyright ownership or registration for those works, providing opinions on whether copyright exists in works, dealing with issues of copyright infringement. That's kind of the broad overview of my practice. I give legal opinions. I provide strategic advice to clients. I have been both in house as a lawyer as well as in private practice, where I'm currently now at Bereskin and Parr.
LD: That's a very broad range of expertise that you have, Naomi. I'm really happy to have you in this interview.
NZ: Lisa, I'd just like to let all of our listeners know that anything that I'm saying on the podcast today is not legal advice. And we're not creating any kind of client–solicitor, lawyer–client relationship. It is just basic information and is not meant to be relied upon in any way for legal advice. And if anybody has any questions, they can reach out to me or to another copyright lawyer.
LD: Thank you. Today we're talking about copyright and how that relates to the things that we see and post on social media. Could you explain what copyright protects, as in how it's created, and perhaps give some examples of online creations that are protected by copyrights?
NZ: Sure. So, at the very basic level, copyright is a creation of statute, the Copyright Act in Canada, and it's federal in nature that covers all of Canada. It's not protected provincially. It's protected at the federal level. When you create a work, you're the author of the work and the first owner of copyright in that work. What does copyright mean? It gives that author and owner of copyright, and then subsequent owners of copyright where copyright is transferred or licensed, the sole right to produce or reproduce, publish or perform the work in whole or in part, and in essence, it allows the owner of the copyright in the work to control the use and exploitation of the work. And by exploitation, it means also monetization of that work. And copyright is the protection of any literary, artistic, dramatic or musical work where there has been an original work created. To have that, you need to have an original expression that's fixed to a substrate that demonstrates the skill and judgment of the author. That's the baseline test in Canada, if you will, to establish that a work is protectable by copyright. And it has to fall into one of the buckets of being literary, artistic, musical or dramatic work.
In terms of your question about an online creation, the design of a website, the arrangement, the selection, the artistic elements in it, the written copy on it, there's a perfect example of an online creation that could be protectable by copyright. Anything that's disseminated through the web or streamed could be a work that is just using that platform to exhibit the work, so they're not necessarily, per se, online work. But any digital work, anything that's created digitally would be an online work and it could be capable of copyright protection if it meets the threshold of being an original expression that demonstrates the skill and judgment of the author.
Derivative works, where you create a work based on another work provided you have rights to use the underlying work, you can have copyright in the derivative work. Again, that can also be an online work. I think we see that a lot with things like memes that go viral and people may or may not license the photograph and then they overlay text or they make changes to it. That could be an example of an online work, and there's more intricacies involved in using somebody else's work under user-generated content exception under the Act so as not to infringe the copyright ownership of the underlying work that was used to create the meme, for example.
LD: Okay, and today we're talking about the use of the internet as a private person. So, when I create things then as a private person, am I the owner of that copyright?
NZ: Well, it all depends on the nature of the work. If you are creating an original work fixed to a medium and you have demonstrated skill and judgment—you haven't infringed somebody else's copyrights—arguably, it would be protectable by copyright. Notionally, if there's a question about it, you would maybe want to seek legal advice to determine if you have copyright in that work. You know, when we think of copyright, we think of somebody wrote a novel, somebody made a movie, somebody took a photograph, somebody painted a painting. But, there's copyright in a brochure or in a manual of instruction. If there's original expression, there's copyright in it.
There isn't copyright in an algorithm, but there can be copyright in computer software, and so at the end of the day, it all comes back to the definition of what is protectable under Canadian law.
LD: Okay. Let's talk a little bit about how these things are shared or, well, copied. We copy and click, share. If I see a fun post on social media and then I share it, does it mean I've copied someone else's work without permission, then?
NZ: If you copy somebody else's work and you share it, you have reproduced it. If you don't have permission to reproduce it, then you have potentially infringed copyright. But again, you have to determine if the work that you're sharing is one that has copyright protection.
I think where this comes up a lot, in the case of things like memes and—I'm going to mispronounce this, it's either jiff or gif depending on the camp you sit in, a lot of that kind of content is meant to go viral. It is meant by the creator of that work to be shared throughout the internet by people across the globe. But if you take something and you do copy it and you do share it and you didn't have permission to do so, there could be liability for copyright infringement potentially. It all comes down to who the author of the work is, is the work protectable and would that author care that it's being shared without permission or not. But again, in the realm of things like memes and gifs or jiffs, people generally expect those things to be shared virally.
LD: Very interesting. And when we talk about something going viral—we mean hundreds of thousands, maybe even millions of sharing—someone may think that, when they find something on the internet, they're free to use it however they like and that they sometimes think that what they found is what they think is in the public domain. But public domain has a specific meaning. Can you explain what this actually means?
NZ: Absolutely. A good example would be when somebody posts a photograph on Twitter or on Facebook, and they may have even gone to the lengths of creating a private account that only the friends that are connected to them can see those videos or photos that you posted. Or in the case of Twitter, if it's protected, tweets that only the person who has accepted somebody into their network could see them. However, because technology is what it is, if you can copy it from the tweet or from the Facebook page, it can be shared, it can be reproduced by the person who's making that copy and then sharing it.
Just because a work is posted to social media like Twitter or Facebook or TikTok or any of those kinds of platforms, doesn't mean it's in the public domain. It just means that the public is able to see it or the select group of people that are allowed to follow somebody on Twitter or TikTok or are a quote-unquote friend on Facebook.
Those aren't in the public domain just because it's out there on social media doesn't mean it's in the public domain. Public domain as it pertains to copyright is tied to the length of term of copyright protection. So in Canada currently, the general term of copyright protection is the life of the author of the work plus 50 years. It's going to be extended to 70 years, but we haven't seen that come into effect yet. So what that means is, that work is protected for the life of that author. So, after all that time, the work falls into the public domain. It means it's no longer protected by copyright.
So what happens with the Internet is you've got this very murky water, if you will, of people assuming just because I can see something means it's public and I can then share it, but that's not accurate.
LD: Very interesting. Thanks for clarifying that, and that really puts a completely different meaning to that term of the public domain. Some people may say that sharing a photo or maybe parts of a copyright like a song, they may see it as a way to give free publicity. What would you say to them?
NZ: You know, that's a lovely thought. But it's not got any validity in law. The reality is that, built into the Copyright Act, there are exceptions to infringement under fair dealing. There's also the user-generated content exception, where somebody uses an image not in a commercial manner to create something like a meme or a gif and they're not profiting from it. In fair dealing, if fair dealing is met, you could use somebody's work. Those are user-right defences to copyright infringement. But you have to qualify, you have to go through the analysis in each use case to determine if any of those user rights, the defences, are available to you.
Nowhere in the Act does it say, "Oh it's free publicity; therefore, you can copy and use it and share it." In some cases, people turn a blind eye and they don't care, and they're happy to have free publicity. But there's no legal defence, no legal justification on the basis of free publicity to share something. And you take a big risk. You take a big risk if you rely on that as your argument because, while in one case somebody might not sue, in another case, they might. And you just don't know when that will happen. So, govern yourself accordingly, and if you're going to do that, you're opening up the door to assume risk for sure.
LD: I see it sometimes, people that have shared a photo and there is like a little reference to the creator. Is it fine to share someone else's work like a photo or maybe a graph or snippets of a text as long as I say where this comes from?
NZ: You're alluding to the concept of fair dealing in that. And fair dealing, as I mentioned previously, is a user right or a defence to copyright infringement. Under the Copyright Act, there are very specific categories. You can use someone else's work for purposes such as news reporting, criticism and review, private study, research, education, parody, satire. Those are it. We have very distinct buckets under the Act. And while, yes, you have those outlined as allowable purposes, you then have to go through an analysis as to whether the use is actually fair. It's a six-part test, and it's not something that a layperson should be undertaking without the assistance of a copyright lawyer or perhaps a media entertainment lawyer well versed in copyright to assist with that.
Let's say you see a Canadian Press article or Toronto Star article or a Globe and Mail article and it includes a photograph that was not taken by a staff or freelance photographer for any of those publications, but it's a reproduction of someone else's photograph. And you see this source of the photograph and the author of the photograph being credited in small print underneath the photo or in the bottom corner of the photo. That would be a news reporting exception being relied on most likely, and you have to credit the source and the author in order to comply with the requirements of the Copyright Act for that particular fair dealing purpose.
But in the context of news reporting, there's generally an idea that you're sharing information about something that's important of great public importance. And if that photograph is the only way to convey the story visually, if the lawyer has gone through with the entire fairness analysis and passed, then they'll use it. But again, they still don't just say, "Here's a photograph, slap on a source and an author attribution and you're good to go."
You can see, as long as from an errors and omissions review perspective you've met the fairness analysis as being deemed fair in the lawyer's opinion, then that use will be fine. So it's hard to, in the abstract, say what would and wouldn't qualify for any of these fair dealing or other user-right protections that exist in the Act.
LD: That's really murky waters, as you say. We've mostly talked about copyright in relation to private uses on social media. But as you also mentioned, online media is also a channel for other users like small businesses, and they may want to use social media to advertise their products or events and even screen movies, where a lot of copyright content can really be part of what we see. And you mentioned you've worked with digital media and broadcasting firms to do something called errors and omissions review. What is that and why is it important?
NZ: We have a few things in there I'll unpack. I want to, first off, explain that copyright is complicated. It is a multi-layered onion. And when you peel back each layer, it can get harder and harder. Sometimes it gets easier, but there's a lot of layers to go through in order to assess whether or not the use is fair if you're relying on fair dealing as a means to use somebody else is work. In the context of whether or not your work has copyright protection in it, again, there's always an analysis as to whether or not it's an original expression. It isn't a straightforward thing to evaluate.
In the context of small businesses or individuals using other people's work on their platforms, whatever those may be, I'll be honest, I see a lot of copyright infringement in my day-to-day life when I just walk around because people think that they can just use what they want, because they find it available in the public.
There are valid ways to use somebody's work, but do so with the help of a seasoned copyright lawyer or media lawyer. And so, to link that up to errors and omissions, that involves reviewing somebody's use of other people's work in the context of the Copyright Act exceptions to copyright infringement and analyzing whether or not those uses meet any of those defences, user rights—however you'd like to refer to them—and advise whether or not they do.
In the context of making video content, for example, if you want to have errors and omissions insurance to protect against any kind of lawsuit for copyright, trademark or other IP infringement or for infringement of proprietary or personal rights like privacy right, for example, or misappropriation of personality, then you need to have a lawyer review your content. And anything that's not used with the consent of the individual or the owner, then that errors and omissions lawyer has to assess those uses in context of the film, in context of the Act, in context of case law and advise whether or not, in their opinion, that use will be justified. And if it is justified in the opinion letter to the insurer, it will say so. If it can't be justified, then the errors and omissions lawyer will probably say, "You need to license it, you need to get permission from the individual, you need to get it in writing, and we'll draft what you need drafted in order to convey that permission. But using it as is right now is a problem." So that's what you do when you're an errors and omissions lawyer, in a very oversimplified way.
LD: I want to ask you one last question. Copyright is created automatically as the work is being created and you can register it. But you're not required to register it to get the copyright protection. What do you tell your clients?
NZ: In Canada, and in any Berne Convention signatory country, you automatically have copyright protection upon the creation of the work. So you don't have to register your copyright to be protected. And that's a treaty that countries around the world, not every country but many countries around the world, signed onto that says that we agree to not require any formal requirements of registration for copyright protection in our country because we're signatories to this treaty, and we also provide reciprocity. So, if you create your work in the UK, your work will have automatic copyright protection in Canada, presuming you're a signatory country, and I use two that are signatory countries.
But in Canada, you don't have to register your copyright to avail yourself of statutory damages, actual damages and injunction. You don't need to register your copyright whatsoever. That being said, while there is a presumption under the Act, under the Copyright Act, that says if you're the owner of a work or you've created a work or you're presumed to be the owner of the work, copyright is presumed to exist in the work, but having a copyright registration for your work is an added layer of protection against the world, if you will, and especially in the context of litigation. It's excellent evidence to say, "Hey, here I have a government certificate. That would then have to be disputed in a court and unproven in order to dismantle, or negate if you will, that copyright registration protection. So what I advise clients is it's always great to register—it's is actually fairly inexpensive. And where it can get costly, obviously, is how many copyrights you are registering.
So part of what I do in my practice is I'll sit with the client and we'll analyze what their body of works are and determine whether or not copyright registration makes sense in all cases. Copyright registration in Canada is a little different than in the States because we don't have to deposit a copy of the work. I mean, if you write a book, it's probably good idea to register copyright, especially if you're going to submit this out into the world for other people to read. It's an added level of protection. I counsel people to register their copyright, but to do so in a way that makes sense and works with their budget. And the other thing that people ask about all the time is do you have to put a copyright notice on your work. There's nothing in the Act that says you do. However, it's a good practice. Put a little "c" in a circle at the bottom of your work or, depending on the nature of the work, I might say put it in a different location. Like if it's in a book, you're going to put it in an interior first page or so after you open up the cover. You want to put it somewhere where it's going to be visible, and you put the year, and you put the name of the copyright owner and add the words "All rights reserved." It's not a magic bullet, but it's certainly a simple statement, if you will, that you can include on your work to give notice to anybody viewing it or interacting with it that copyright actually exists in it. But at the baseline, copyright exists upon the act of creation. Once the work is created, there's copyright protection in it in Canada.
LD: Thank you, that's very good and an actionable information for every listener that might be interested in registering their copyright. Naomi, it's been a real pleasure to have you in our podcast. Thank you so much for being part of the community to try to educate and make people aware of intellectual property.
NZ: Oh, it's my pleasure, my pleasure.
LD: You've listened to Canadian IP voices, where we explore intellectual property. In this episode we heard Naomi Zener from IP law firm Bereskin and Parr explain some of the complexities involved in understanding copyright ownership and how that relates to sharing contents online. Naomi also gave some examples of what an errors and omissions review includes and also mentioned some of the considerations for registering your copyright. To learn more about or maybe register your copyright, go to Canada.ca/copyright.