Canadian Copyright Law, Technology and Cultural Management

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This seminar will provide cultural managers with a broad overview of the evolving legal and business issues facing copyright owners who wish to exploit and protect their property in the expanding digital, web-based, techonolgically-enabled universe. It will also provide a targeted framework for assessing the short and long term legal and business risks and benefits arising from the promotion, commercialization and enforcement of their copyright over the Internet among an increasingly demanding consumer base. Created by Elise Orenstein for the 2008 Technology in the Arts: Canada Conference.

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Canadian Copyright Law, Technology and Cultural Management

  1. 1. ON THE VERGE OF CANADIAN COPYRIGHT REFORM: A PRIMER ON COPYRIGHT AND THE INTERNET FOR ARTISTS AND ARTS MANAGERS <ul><li>BY ELISE ORENSTEIN (M.PHIL. OXON, LL. B) </li></ul><ul><li>TECHNOLOGY IN THE ARTS CONFERENCE </li></ul><ul><li>UNIVERSITY OF WATERLOO </li></ul><ul><li>SATURDAY, MAY 10, 2008 </li></ul><ul><li>WITH SPECIAL THANKS TO RICHARD C. OWENS, BLAKE, CASSELS & GRAYDON </li></ul>
  2. 2. What is the Internet from an artist’s perspective? <ul><li>What is the Internet from an artist’s perspective? </li></ul><ul><li>-A potential worldwide audience </li></ul><ul><li>-A source of research </li></ul><ul><li>-A means to communicate and exchange ideas within the Internet community </li></ul><ul><li>-A platform for new forms of creative expression (thumbnail photos, two minute films, the blog) </li></ul><ul><li>-A means of recognition/promotion </li></ul><ul><li>-A means of income </li></ul><ul><li>-A means to avoid censorship regulations (but not criminal activity) </li></ul>
  3. 3. A means of recognition/promotion <ul><li>-Artist owned web sites </li></ul><ul><li>-Space on third party web sites </li></ul><ul><li>-Interactive bulletin boards, blogging, ratings - all contribute to buzz (but also dangerous because people talk to each other quickly and in large numbers) </li></ul><ul><li>- A forum for social networking opportunities which may lead to commissions </li></ul><ul><li>- A means of self-presentation, branding and image control - artist notes can create image of artist and artist can interact with visitors </li></ul><ul><li>-A means to circumvent traditional career path frameworks and distinguish oneself outside traditional institutions </li></ul><ul><li>Examples: </li></ul><ul><li>Visual artists face peer reviews, institutional elitism, rejection by gallery owners for inclusion in shows </li></ul><ul><li>Writers face difficulty in getting an agent, finding a publisher </li></ul><ul><li>Filmmakers must find the financing or distribution deals for their stories </li></ul><ul><li>Actors face similar challenges including finding an agent and meeting producers, directors, etc. </li></ul><ul><ul><li>-A means to reach people all over the world, regardless of domicile, by targeting, tracking, deliverability and flexibility (24/7), interactivity </li></ul></ul>
  4. 4. Flickr and Rebekka Guuoleifsdottir <ul><li>-See NYT Magazine 4.27.08 </li></ul><ul><li>-2 billion images posted on Flickr site, founded in 2004 </li></ul><ul><li>-RG refined photo stream technique, to create images that look good shrunk in thumbnail form </li></ul><ul><li>-RG learned to title and tag photos to come up readily in searches </li></ul><ul><li>-RG learned how to police copyright infringement (eBay infringement) (photos sell for @ $130) </li></ul><ul><li>-RG garnered recognition for contrast style, slow motion of liquid spilling, which led to recognition by ad exec and Toyota ad commission for Prius car </li></ul>
  5. 5. Self-Published Author Wins $10,000 Humour Award (see Globe & Mail, Thursday May 1, 2008) <ul><li>-“head on collision of shock and joy” after Terry Fallis beat 4 other finalists (whose books were released last year by official publishers, including Douglas Coupland and Scott Gardiner), for Stephen Leacock Medal for humour </li></ul><ul><li>-turned down by publishers, Fallis published one chapter at a time, as a free, downloadable podcast on his own website and on iTunes and www. podiobooks .com </li></ul><ul><li>-Berlin based Radioropa, Europe’s leading satellite radio network noticed and broadcast the novel </li></ul><ul><li>- Fallis paid $4,000 to on demand print service iUniverse and has sold 500 copies at $21.95 </li></ul><ul><li>-agent, who originally turned Fallis down, wanted to pick him up after being short listed for the prize </li></ul>
  6. 6. Internet Income Sources <ul><li>-Artist website sales of artist works </li></ul><ul><li>-Third party web site sales of artist works </li></ul><ul><li>-Commissions by Internet websites, Internet advertisers and content providers for artist works </li></ul><ul><li>-Commissions by traditional sources for traditional and/or electronic media as a result of artist’s Internet presence </li></ul><ul><li>- Royalties from existing collectives governing Internet use and theoretical possibility of new royalty streams if ISPs and search engines required to pay royalties in exchange for permission to charge users on a pay per view basis for online access to copyrighted works </li></ul>
  7. 7. U.S. Hollywood Writers’ Strike- WGA 2008-2011 Settlement <ul><li>-For Internet sales, writer to receive 0.36% of distributor’s gross revenues for first 100,000 downloads of a TV show and first 50,000 downloads of a feature, thereafter 0.7% for TV and 0.65% for feature, and in year three, 2% of distributor’s gross on streamed content (which is slightly more than @ $1,300 writers will receive in first two years) </li></ul><ul><li>-Studios can stream for free during 17 day window on all streamed content </li></ul><ul><li>-Producers yielded on change from flat fee to % as unlikely that Internet distribution to become significant during term of Agreement </li></ul><ul><li>-For writers, tens of thousands of dollars per episode in residuals at stake because of shift to web streaming from DVDs and new rates significantly better for web based streaming </li></ul>
  8. 8. What is the Internet from a copyright lawyer’s perspective? <ul><li>-An opportunity to enable clients to; </li></ul><ul><li>- Achieve their respective goals via the Internet platform through licensing, protection measures and enforcement actions: and </li></ul><ul><li>-To avoid liability for inappropriate uses </li></ul><ul><li>-A challenge to ensure that a client’s economic rights and moral rights (paternity/recognition and integrity) arising from copyright are maintained, having regard to; </li></ul><ul><li>- the pace of technological innovation, or when technological and other protection measures are not effective, available or permitted by law </li></ul><ul><li>- inadequate domestic legislation, the slow pace of reform, perceptions regarding entitlement to access for free, and uncertainty during ongoing attempts to harmonize laws internationally </li></ul>
  9. 9. Technology Issues <ul><li>-One stroke of a key can propel a protected work to a person, or thousands of persons, anywhere in the world in seconds, via high speed digital broadband communication systems, from computers to cell phones, to fax/copier/printer machines and other recording devices </li></ul><ul><li>-The work can be intercepted by unauthorized persons who may use it and/or digitally alter it for sale or use without appropriate compensation or authority </li></ul><ul><li>-Caching and framing techniques may delete tracking leads and/or authorship notices </li></ul><ul><li>-Control of the technology by an ISP does not necessarily equate to knowledge of the part of the ISP as to what is carried on the service </li></ul><ul><li>-Dual edged sword regarding circumvention of technology issues- consumers desire portability from one platform to another which may be circumvented by built-in technology systems and digital locks or indeed, required to be inserted by law </li></ul>
  10. 10. Polarized Perception Issues <ul><li>-Rights holders need to combat the view that a work, once uploaded to the Internet, presents an invitation to copy and use the work with impunity </li></ul><ul><li>- Rights holders respond to the notion that users are all part of the net “community” and therefore, friends of the artist, who are entitled to view, use, copy, sell or alter for free </li></ul><ul><li>-There is also a reverse perception that artists and/or cultural institutions are always the underdog, that culture is under funded and therefore artists are entitled to compensation for every use of their works and that all users and carriers are thieves </li></ul><ul><li>-Collective bargaining societies have polarized users and content providers/carriers and the courts have had to intervene to strike a balance </li></ul><ul><li>-Courts are intervening by interpreting the law to give effect to public policy and the role of the Internet in modern society but, do not like to charge people on weak evidence, given user community understandings </li></ul>
  11. 11. Perceptions Cont’d <ul><li>-Initiatives from search engines, ISPs and server owners to introduce a pay per view business model for online use of content to help recoup their costs of doing business and burden of enforcement would be viewed as a limitation of fair dealing and doctrine of free access </li></ul><ul><li>-Understanding that derivative works, using other people’s copyright, can be made provided that no charge for the new work, as in video games created under a model leader with the participation of various creators such as composers, programmers, visual artists, and authors and then shared by gamers for free </li></ul><ul><li>-Perceptions regarding user rights to materials on the Internet may colour users’ judgments as to which uses are implied in fact and which do not fall within the scope of implied licenses to use (e.g. It may be permissible to archive and forward copyrighted emails on a public list but not to link content from one site to another, remove credit, or burden other servers as a result of linking activity) </li></ul>
  12. 12. Perfect 10 v. Google -Sex, Copyright and the Internet <ul><li>- Case deals with search engine’s liability, framing, and the onus on rights holder to notify engine of infringement </li></ul><ul><li>-Recent U.S. appellate decision addressed the limits of search engine’s ability to index and display proprietary content, in this case, thumbnail versions of unauthorized pictures of nudes, owned by Perfect 10 </li></ul><ul><li>-No direct infringement by Google, even though the whole photo was displayed once clicked on by the mouse because Google only ‘framed” content provided by a link to someone else’s server and Google itself did not make copies on its server </li></ul><ul><li>- Potential commercial market for thumbnail images- but Court found Google’s return of thumbnails was “fair use” (highly transformative and of great value) - i.e. it is entitled to copy an entire work and display it in search results </li></ul><ul><li>-On the issue of secondary infringement, the issue sent back to trial to determine whether Google had actual knowledge that specific infringing materials were available using its system and whether Google then continued to provide access to those works </li></ul><ul><li>-Google had removed materials on request by Perfect 10 but Perfect 10 was not assiduous in keeping up its requests - (Courts generally do not wish to find against a defendant when doubt as to actual knowledge of the ISP or individual of an infringement or unauthorized use or, where there is acquiescence on part of rights holder) </li></ul>
  13. 13. Copyright Under Existing Canadian Law <ul><li>-Under Canadian law, copyright arises from the federal Copyright Act </li></ul><ul><li>-All rights and remedies flow from the Act, not common law </li></ul><ul><li>-The Act, proposed in 1921 and passed in 1924, was originally modeled on the 1911 British Act and has been amended in a patch work method over many decades, with interesting if not necessarily comfortable results </li></ul><ul><li>-In the meanwhile, the British Act was substantially amended in 1976 and continues to evolve </li></ul><ul><li>-Many concepts from American jurisprudence in relation to copyright have influenced Canadian courts, in particular, the American concept of fair use, (a right of users and not merely a defence to infringement), has been imported into the previously more narrowly construed Canadian concept of fair dealing </li></ul>
  14. 14. International Context <ul><li>-Canada adheres to the Rome Treaty, the UCC and, the Berne Convention which includes most industrialized countries in the world, and accords reciprocity to member nations </li></ul><ul><li>-The Berne Convention includes protection for various kinds of works and covers economic rights, moral rights </li></ul><ul><li>-Canada signed various WIPO treaties dealing with copyright in the digital age in 1997 but has not ratified them </li></ul><ul><li>-Canada about to release a new Copyright Bill to harmonize with treaty obligations, clarify issues regarding copyright as applied to new platforms and technologies, and find a “made in Canada” solution as to the balance between rights holders, users, net neutrality, freedom of creative expression and technological development and other issues </li></ul><ul><li>-Different voices have risen to high decibel levels and much mud-slinging in the press but many constituencies do not have a monolithic ideology and positions change depending on the specific intersection of rights at stake </li></ul>
  15. 15. International Cont’d <ul><li>-The 1998 United States Digital Millennium Copyright Act (DMCA) amends, extends and revises the existing American Copyright Act with respect to technological developments and electronic commerce and employs relevant terminology </li></ul><ul><li>-The DMCA is considered the model for copyright revision by some and countries such as Israel and the Philippines have recently modeled their respective legislation on it and others, New Zealand and Australia referenced various sections </li></ul><ul><li>-The U.S. Act does not deal with neighbouring rights </li></ul><ul><li>-The DMCA is perceived as favouring rights holders over users despite the strong fair use doctrine embodied in the original Act </li></ul><ul><li>-Canada is under pressure by the U.S. recording industry to reform its laws and make it tougher to file share </li></ul><ul><li>-The black market for music in Canada has cut into online revenue which accounts for 8% of market in contrast to 25% in the U.S. </li></ul>
  16. 16. Canadian Copyright Reform Issues <ul><li>-Always an issue of balancing user rights and those of rights holders having regards to access, balance, control, free speech, fair competition </li></ul><ul><li>-Broader societal issues also at stake as limitations on access to works may hamper economic competitiveness, innovation and research, conflict with open access movement which benefits researchers and the public </li></ul><ul><li>-Practical issues also need to be addressed in terms of the ambit of collective rights associations and whether the current silo approach should be replaced with umbrella collectives, whose rights are correlated to and flow from new legislation (e.g. one collective for copyright and neighbouring rights holders) </li></ul><ul><li>- Specific issues are; </li></ul><ul><li>-whether a “making available right” should replace the current “right to communicate to the public by telecommunication” and extend to neighbouring rights </li></ul><ul><li>-whether to protect technological protection measures (TPMs) employed by rights holders and/or to exempt activities relating to reverse engineering, interoperability, security, encryption studies and educational uses and other circumvention activities for legitimate purposes </li></ul><ul><li>-whether to extend TPMs to devices (digital locks) </li></ul><ul><li>-whether to make the removal of rights management information (code or text which identifies rights holders and/or scope of licence) a secondary infringement of rights and whether the WIPO Treaty requires such scope </li></ul>
  17. 17. Reform Cont’d <ul><li>who qualifies as an ISP (conduit) </li></ul><ul><li>to what extent should ISPs be liable for content on their systems </li></ul><ul><li>when does an ISP have knowledge of infringement, ISPs’ duty to cooperate with rights holders after notice </li></ul><ul><li>whether ISPs should have an increased role in monitoring and policing because they can as opposed to should and who pays the costs of same </li></ul><ul><li>whether same should be a right or a duty, notice and take down, notice and notice regimes </li></ul><ul><li>whether ISP system activities such as caching, storage and framing should be exempt </li></ul><ul><li>the impact of financial gain on ISP liability </li></ul><ul><li>expedited injunctive relief </li></ul><ul><li>privacy concerns related to the above </li></ul><ul><li>compulsory licensing of ISPs to cover online liability paired with a right to use a digital network </li></ul>
  18. 18. What kinds of works attract Copyright? <ul><li>-Only original works attract copyright- S.5 </li></ul><ul><li>-American and Anglo based common law courts grapple with the meaning of “original” </li></ul><ul><li>-It has been interpreted to mean “not copied”, or requiring a “creative spark”, or requiring some “skill, judgment or labour” </li></ul><ul><li>-In the 2004 case Law Society of Upper Canada v. CCH Canadian Limited , the SCC held that to be original, “a work must have originated from the author, not be copied, , and must be the product of skill and judgment that is more than trivial” </li></ul><ul><li>-It rejected a “sweat of the brow” test because that alone would extend protection to facts and, as applied by the U.S. Supreme Court, would also deny protection to works such as white pages directories </li></ul><ul><li>-It also rejected the application of a “creativity” test, which would import patent law concepts of novelty or non-obviousness </li></ul><ul><li>-Accordingly, headnotes, a case summary, a topical index, reported decisions with headnotes, a text book, an annotated criminal practice book, and a monograph are all works protected by copyright </li></ul><ul><li>-A précis which requires skill and judgment attracts copyright but edited pieces may not if the labour is merely mechanical </li></ul>
  19. 19. Form of Expression <ul><li>-Copyright protection extends to the form of expression but not to the underlying ideas, systems, factual information or concepts </li></ul><ul><li>-Fair dealing and fair use permit use of some of the content of a copyrighted work in a parody of the original work </li></ul><ul><li>-It is a question of fact as to how much may be used without infringement and whether to obtain permission from the rights holder </li></ul><ul><li>-Neighbouring rights complicate this issue, particularly moral rights (distortion) </li></ul><ul><li>-Copyright intersects with free speech and privacy issues </li></ul><ul><li>- In Canada, a phone directory and a database attract copyright protection (unless copied) but not the underlying information or facts which can be compiled by others and result in identical or near identical works </li></ul><ul><li>-Difficult to prove whether digital databases have been copied or digitized independently </li></ul><ul><li>-Sites that insert technological protections to safeguard against such copiers may block public domain works, or prevent legitimate use of excerpts of protected works, which collides with fair dealing rights and may place greater limits on access to and use of digital information than print information </li></ul>
  20. 20. Copyright subsists in categories of works (Ss. 5 and 2) <ul><li>-Literary works- include books, pamphlets, tables, other writings, computer programmes, and compilations of literary works </li></ul><ul><li>-Dramatic Works-include recitations, choreography, music fixed in writing, cinematographic works and dramatic-musical works </li></ul><ul><li>-Musical Works- include works of music or musical compositions with or without words </li></ul><ul><li>-Artistic Works-include paintings, drawings, maps, charts, plans, photographs, engravings, sculpture, crafts and architectural works such as buildings, and sculptures and models </li></ul><ul><li>-Collective Works and Compilations-Copyright subsists in compilations of the above categories of works and in collections- the work as compiled or collected has its own copyright even if the copyright in the underlying works is owned by someone else or does not exist </li></ul>
  21. 21. Categories of Works Cont’d <ul><li>-Collections include-encyclopaedias, dictionaries, newspapers, magazines, works of different authors </li></ul><ul><li>-Compilations include-works resulting form the selection or arrangement of other works, or of data </li></ul><ul><li>Robertson v. Thompson (S.C.C. 2006 decision split 5 to 4) </li></ul><ul><li>-Issues included whether a newspaper can reproduce articles of freelance writers; </li></ul><ul><li>-on a data base such as Info Globe Online which brought up the article in text form with the headline, and page and section references to the newspaper edition </li></ul><ul><li>-on a keyword searchable electronic index, organized by author/ subject, containing articles from various newspapers </li></ul><ul><li>-on a CD-ROM containing a year’s worth of editions of newspapers which enabled a reader to scroll through the electronic editions </li></ul><ul><li>And whether the defendant could rely on defences of implied licence, implied terms, consent, acquiescence and waiver </li></ul>
  22. 22. Category Cont’d <ul><li>-Test is whose “originality” is being reproduced: the freelance writer’s or the Publisher’s as a collective work </li></ul><ul><li>-Majority held that the first two databases were structured so that the articles were decontextualized to the point that their connection with the newspaper edition was lost, even though date and page numbers referenced the original paper editions </li></ul><ul><li>-All held that the CD-ROM did not infringe because it preserved the linkage to the original paper (each newspaper viewable as a discreet newspaper) </li></ul><ul><li>-S.C.C. agreed that a non-exclusive licence does not have to be in writing but a question of fact, for retrial, as to the scope of an implied licence from the freelance author as conflicting evidence in case before Court </li></ul>
  23. 23. Robertson Cont’d <ul><li>-Minority position would have dismissed the (class) action: </li></ul><ul><li>- a collective work inherently contains individual work </li></ul><ul><li>- net neutrality means one should not compare the works visually from one media to another (S.3 grants the rights holder the sole right to produce or reproduce the work or a substantial part “in any material form whatever”) </li></ul><ul><li>-it is logical to divide the electronic stream of the electronic version of the paper into individual articles </li></ul><ul><li>-U.S. case, Tasini v. New York Times , held that a paper cannot sell print copy of an article without the consent of the author and cannot do so indirectly through an electronic database </li></ul><ul><li>-Canadian Copyright Act contains media neutrality language (S. 3 “any material form whatever”) and therefore, different focus than European cases which consider change of media an infringement </li></ul><ul><li>-Rights now dealt with expressly in written agreements </li></ul>
  24. 24. Rights Conferred <ul><li>-Copyright is the sole right to produce, reproduce the work, or any substantial part in any material form, to perform it in public, to publish it and includes the right to; </li></ul><ul><li>-communicate the work to the public by telecommunication </li></ul><ul><li>-to translate the work, convert a novel into a film and vice versa and similar rights </li></ul><ul><li>-to exhibit the work </li></ul><ul><li>-to rent computer programmes and sound recordings </li></ul><ul><li>-to authorize any of the rights (but, placing a photocopier in a library, (warning users to respect copyright) does not infringe and neither does copying materials for others to use as research -SCC in CCH) </li></ul>
  25. 25. Rights Conferred Cont’d <ul><li>-Performers’ rights - to fix and/or perform the performance </li></ul><ul><li>-Sound recording rights- to broadcast, record, rent </li></ul><ul><li>-Broadcast rights-to record, reproduce recordings, permit others to broadcast, perform the signal in public for payment </li></ul><ul><li>-Moral rights-integrity, paternity </li></ul><ul><li>-An email may attract copyright and therefore, the author controls whether he or she wishes to be credited </li></ul><ul><li>-Best to indicate permitted use for material posted to the web (browse, download, copy for personal use) on the material or pursuant to legal conditions and terms of use on site </li></ul><ul><li>-Difficult to revoke implied permission once granted </li></ul>
  26. 26. Fair Dealing Exceptions to Infringement -s.29 <ul><li>-In the CCH case, SCC affirmed that copyright is a balance between the rights of the author/creator in the work and the rights of the public to use the work </li></ul><ul><li>-SCC characterized the fair dealing exception as a user right, rather than a mere defense, which is not to be interpreted restrictively (consistent with broader U.S. doctrine of fair use) </li></ul><ul><li>-The purpose must be one of research, private study, criticism, review, or news reporting </li></ul><ul><li>-Court will consider other factors (previously codified in U.S. fair use s.107): </li></ul><ul><li>-the character of the dealing (commercial or non-profit, educational)) </li></ul><ul><li>-the amount of dealing (qualitative and quantitative test) </li></ul><ul><li>-alternatives available </li></ul><ul><li>-the nature of the work </li></ul><ul><li>-the effect of the dealing on the work (potential market or value of the work </li></ul>
  27. 27. Fair Dealing Cont’d <ul><li>-In CCH, Court noted that the demand for and the sale of textbooks, periodicals and similar materials was not diminished as a result of use of photocopier </li></ul><ul><li>-Question remains whether digital copying would reduce the value of a work, and CCH case would support file sharing unless economic harm demonstrated </li></ul><ul><li>-In two related U.S. cases, ( UMG Recordings v. MP3.com ) the Court rejected a “public benefit” argument in connection with the unauthorized distribution of copyrighted music over the Internet saying it amounted to a right to misappropriate property simply because there was a consumer demand for it and imposed statutory damages exceeding $100 million </li></ul><ul><li>-Act provides specific exemptions for instruction by educational institutions, and for libraries, archives and museums-S.30 but not specifically regarding Internet uses </li></ul>
  28. 28. Fair Cont’d <ul><li>-Other exceptions permit backup copies of computer programmes, incidental use, time shifting by broadcasters, uses by disabled persons, uses at agricultural fairs, religious uses, use of moulds by artists </li></ul><ul><li>-Note that fair dealing may require mention of the source, author, performer, maker or broadcaster </li></ul><ul><li>-Fear that anti-circumvention laws which protect digital locks, could “eviscerate the fair dealing exception in the digital world, since the blunt instrument of technology can be used to prevent all copying”, not just protected works -Michael Geist- blog of April 22, 2008 </li></ul><ul><li>-Scope of fair dealing key issue: flexibility, time, space and format shifting, right to mix, remix, mash and engage in satire and comedy </li></ul>
  29. 29. Neighbouring Rights <ul><li>-Copyright- like rights in respect of creative works recognized by various countries and protected by treaties for the benefit of residents and citizens of those treaty countries </li></ul><ul><li>-Canadian neighbouring rights are: </li></ul><ul><li>-Performers’ Rights- performers acquire rights in the work (song, play, movie) as performed by them- “performer’s performance” </li></ul><ul><li>-Sound Recording Rights-the “maker” of the work has a right in the work as “recorded”-“sound recording” </li></ul><ul><li>-Broadcasting Rights-television and radio broadcasters enjoy rights in the works as broadcast (the broadcast day)-“communication signal or any substantial part thereof” </li></ul><ul><li>-The United States does not recognize or provide for “performers’ rights’, consequently its citizens do not enjoy such rights in Canada </li></ul>
  30. 30. Moral Rights <ul><li>-The concept of the inalienable rights of creators developed in Europe, some of which are integrated into the Canadian Copyright Act; </li></ul><ul><li>-the right of integrity (the Eaton Centre was required to remove the Christmas ribbons it placed on the necks of artist Michael Snow’s geese sculpture installation) </li></ul><ul><li>-the right to prevent distortion of the work </li></ul><ul><li>-the right to have the author’s name associated, or not, with the work, as the author chooses </li></ul><ul><li>-Moral rights cannot be assigned but can be waived by the author (or estate) </li></ul><ul><li>-Employees, whose works generally are owned by the employer, should still be required to sign a moral rights waiver </li></ul>
  31. 31. Moral Cont’d <ul><li>Galerie d’Art du Petit-Champlain v. Theberge (SCC 2002- 4 to 3 Split décision) </li></ul><ul><li>-The gallery lawfully purchased posters of paintings of the artist but used a chemical process to lift the ink layer from the paper poster (leaving it blank) and to display it on canvas </li></ul><ul><li>-The majority distinguished between an artist’s economic rights in a work which treat the work as an article of commerce, and which rights can be assigned and moral rights, which are not assignable as they are an extension of the artist’s personality </li></ul><ul><li>-Infringement of moral rights (distortion, mutilation, or modification of a work) occurs if the work is modified to the prejudice of the honour or reputation of the artist </li></ul><ul><li>-Majority held that artist was asserting a moral right in the guise of an economic one (infringement of the reproduction right) and held that this type of reproduction, in which no additional copies were made, was not a breach of reproduction right and the artist did not show the requisite prejudice to his reputation </li></ul>
  32. 32. Moral Rights Cont’d <ul><li>-The alternate view, held by the dissenting judges, is that; </li></ul><ul><li>-the gallery infringed the reproduction right having regard to both a quantitative test and a qualitative test and that it did not matter that the same number of copies were made </li></ul><ul><li>-fixation of the work in a new medium is the fundamental act of reproduction </li></ul><ul><li>-the contract between the artist and the gallery was very detailed and it did not convey the right to produce reproductions on any other medium except paper and stationery </li></ul><ul><li>-the artist never gave up his right to reproduce on canvas </li></ul><ul><li>-moral rights do not apply to this case as an act of infringement of economic rights occurred </li></ul><ul><li>-Note that linking activities, and surrounding a work with ads, disguising the source, etc. may infringe moral rights </li></ul>
  33. 33. When Do Rights Arise <ul><li>-Copyright, moral and neighbouring rights arise on creation </li></ul><ul><li>-No need to register copyright or mark the work as such as these actions are not required under the Berne Convention </li></ul><ul><li>-The U.S. recently joined the Berne Convention but its Act still requires that its citizens, and anyone seeking damages in a lawsuit, register copyright (and deposit a copy of the work) </li></ul><ul><li>-Use of the copyright notice is widespread practice in Canada and not only provides notice to the public of private ownership but may be evidence in establishing the date of creation </li></ul><ul><li>-Registration easy in Canada, (no copies are deposited), and can aid in lawsuits dealing with assignment issues and otherwise serves as prima facie proof of copyright, which can be rebutted at trial </li></ul><ul><li>-It is impractical and can be costly to update registrations for websites which are updated daily, despite the benefits </li></ul>
  34. 34. Term <ul><li>-The term depends on the type of work and whether joint authors </li></ul><ul><li>-For most works, term is the lifetime of the author plus 50 years after the year the author died (s.6) </li></ul><ul><li>-The term varies; </li></ul><ul><li>-Joint authors-50 years after death of last author </li></ul><ul><li>-Unknown author- lesser of 50 years from publication and 75 years from the making of the work </li></ul><ul><li>-Posthumous works- life plus 50 (exceptions where author died before 1943) </li></ul><ul><li>-Photographic works-50 years from making of first negative </li></ul><ul><li>-Movies-50 years from publication, or making if not published </li></ul><ul><li>-Crown copyright-end of 50th from publication </li></ul>
  35. 35. Term Cont’d <ul><li>-Moral Rights enjoy same term as copyright </li></ul><ul><li>-Performers’ Rights-50 years from first fixation or performance </li></ul><ul><li>-Sound Recordings-50 years from first fixation </li></ul><ul><li>-Broadcasting Rights-50 years form communication </li></ul><ul><li>-Term of copyright in the U.S. for works created after 1978 is longer -life plus 70 years and the term for works for hire and other specific works is the lesser of 95 years from publication and 120 years from creation </li></ul>
  36. 36. Reversionary Term <ul><li>-Except for collective works, (and excluding photographic works, neighbouring rights, some other situations) copyright reverts to the author’s estate 25 years after death </li></ul><ul><li>-Canada one of few countries with reversionary term where rights revert to author’s estate 25 years after death </li></ul>
  37. 37. Public Domain Issues and Museums <ul><li>-Once the term is expired, works fall into the public domain </li></ul><ul><li>-Michael Geist raised an interesting issue in his blog on April 22, 2008 </li></ul><ul><li>“ National Gallery Looking for Profits in All the Wrong Places”- Ottawa Citizen April 15, 2008 </li></ul><ul><li>-As museums digitize their collections and interact with their public in new ways, new possibilities are opening up for these cultural institutions </li></ul><ul><li>-Museums use online video, social networks and interactive multimedia to create next generation museums that pull content form diverse places to create ‘virtual museums” </li></ul><ul><li>-McCord Museum has over 135,000 digital images freely accessible online </li></ul><ul><li>-Canadian Museum of Civilization had 1.8 million visitors in 2006 and 66 million page views for its web based content </li></ul><ul><li>-In 2006 the Victoria and Albert Museum dropped charges for the reproduction of images in scholarly books and magazines </li></ul><ul><li>-However, records accessed via the Access to Information Act, appear to indicate that the National Gallery of Canada has been charging a “permission fee”, often in the hundreds of dollars, for images in the public domain, over and above an administrative fee and a photographic fee for the cost of the reproductions </li></ul>
  38. 38. Public Domain Cont’d <ul><li>-Moreover, the Museum charged less for works still subject to copyright reasoning that there would be additional charges applied by the copyright holder but increased the permission fee for public domain works </li></ul><ul><li>-If these facts are accurate, the Museum trustees should investigate the issue and put an end to the practice </li></ul><ul><li>- However, the Museum could argue that photographs or digital images of works of sculpture, attract their own copyright as the requisite amount of skill, judgment and labour imbue these images with the originality which underpins copyright </li></ul><ul><li>-It is a question of fact whether the originality test could be met and it may be that images of paintings, are executed in a purely mechanical fashion without the requisite degree of originality to attract copyright </li></ul><ul><li>-There may also be copyrights, for which a fee is payable, in the installations of various artefacts, as opposed to the photo of same </li></ul>
  39. 39. Ownership Rules <ul><li>-Usually the author, the performer, the maker (producer), or broadcaster is the first owner of copyright or neighbouring rights, respectively </li></ul><ul><li>-Exceptions; </li></ul><ul><li>-the owner of the negative of a photo is the first owner </li></ul><ul><li>-employers of employees are first owners (without an express or implied contract – different form U.S. “work for hire” concept)-must prove employment situation exists </li></ul><ul><li>-the commissioning party if the creator assigns copyright in writing </li></ul>
  40. 40. Rules Cont’d <ul><li>But, moral rights remain with the author </li></ul><ul><li>In cases involving newspapers, periodicals or magazines, the rights to publish elsewhere remain with the author </li></ul><ul><li>-Copyright can be assigned, in whole or in part, but only in writing </li></ul><ul><li>-Copyright can be licensed, exclusively or non- exclusively </li></ul><ul><li>-Loss of copyrights can occur if owner’s actions (or lack thereof) deemed to be permission to use, or if unfettered use by others creates challenges to claim of originality </li></ul>
  41. 41. New Atlantico and Eurosport Cases (F.C.T.D. 2006) <ul><li>-Both cases were motions for default in which the defendants failed to defend the action-Cases deal with assignment of rights issues </li></ul><ul><li>s against them </li></ul><ul><li>-In New Atlantico , the plaintiffs claimed they purchased the exclusive copyright in Superligia football matches broadcast in Canada by way of assignment from the Portuguese rights holder </li></ul><ul><li>-In Eurosport , the plaintiff claimed it was granted the exclusive distribution rights of commercial broadcasts in Canada of events such as the European Cup from an Irish company Setanta Sport </li></ul><ul><li>-In both cases, the Court concluded that the contract for material merely purported to grant copyright to the plaintiffs but was not proof as to “what rights” the licensor had in the material </li></ul><ul><li>-It appears that a major failing was that the plaintiffs did not establish a proper chain of title for the copyrighted material at issue </li></ul><ul><li>-In other words, the Court was not eager to grant default judgment in the absence of stronger evidence than a contract </li></ul>
  42. 42. Infringement S.27 <ul><li>-Primary infringement occurs when someone exercises copyright without authority or authorizes someone to do so </li></ul><ul><li>-Secondary infringement occurs after a primary infringement, when someone knows or should have known that the “copy” or action infringes but still deals with the work </li></ul><ul><li>-Knowledge irrelevant when dealing with imported goods </li></ul><ul><li>-Renting out a theatre for what one ought to know is an infringing purpose, infringes </li></ul><ul><li>-Copyright is presumed to subsist and unless proven otherwise, first ownership principle applies </li></ul><ul><li>-Actions must be commenced within 3 years of infringement or when it ought to have been known </li></ul><ul><li>-Criminal offences in the Act require knowledge (mens rea) element and potentially lead to fine, (summary up to $25,000 and/or 6 months jail or, indictment up to $1 million and/or 5years) </li></ul><ul><li>-2 year limitation period, and note special criminal provisions for dramatic, operatic or musical works </li></ul>
  43. 43. Piracy, Reluctance of Courts to Convict Except…. <ul><li>-Historical distinction in the non-digital world between infringement by an individual, on a personal scale without necessarily any commercial goal and piracy, which involves commercial scale operations and a profit motive </li></ul><ul><li>-Courts rarely impose prison term </li></ul><ul><li>- Canadian Copyright Licensing Agency v. U-Compute (F.C.T.D. 2006) </li></ul><ul><li>-U-Compute was a local Montreal bookstore, near Concordia University, which illegally copied text books and print study guides to students on demand for reduced prices </li></ul><ul><li>-There was a long history between the store and licensing agency and this case dealt with contempt for failure to obey previous orders and the owner’s resumption of illicit activity </li></ul>
  44. 44. U Compute Cont’d <ul><li>-An investigator found a list of thousands of books but the owner refused access to the inventory </li></ul><ul><li>-Pursuant to a previous Anton Pillar orders, thousands of books were seized from the same establishment </li></ul><ul><li>-Employees were observed selling what appeared to be copied books and traffic to the store </li></ul><ul><li>-Based on the “massive amount of circumstantial evidence”, the Court found guilt on a criminal standard (beyond a reasonable doubt) for contempt and sentenced the owner to 6 months prison which, was suspended as long as he complied with the injunction and performed 400 hours of community service </li></ul>
  45. 45. ISP’s and Liability-Supreme Court of Canada Weighs In <ul><li>Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers (SCC 2004) </li></ul><ul><li>-SOCAN applied to the Copyright Board to approve Tariff 22 to cover music transmitted over the Internet, on demand, via Internet radio stations, streamed or from a web page and argued that ISPs (traditionally viewed as intermediaries) were liable to pay an royalty for content transmitted via their servers </li></ul><ul><li>-The ISPs argued they were exempt pursuant to the intermediary exception in S 2.4 of the Act </li></ul><ul><li>-Echoing language used by the U.S. Supreme Court (in ACLU v. Reno), the SCC recognized the great capacity of the Internet to disseminate works of art and intellect and stated that as a matter of policy, use of the Internet should be facilitated but not unfairly at the expense of the creators of works- i.e. a balance must be struck </li></ul>
  46. 46. SOCAN V. CAIP Cont’d <ul><li>-SCC’s findings: </li></ul><ul><li>-telecommunication occurs when the music is transmitted from the host server to the end user and that a transmission which crosses national borders, occurs in more than one country </li></ul><ul><li>-Canadian jurisdiction depends if there is a “real and substantial connection” between the transmission and Canada having regard to the situs of content provider, the host server, the intermediaries and the end user </li></ul>
  47. 47. Dissenting Opinion <ul><li>-Justice LeBel dissented on the jurisdiction issue concluding that the site of host server (in Canada) determinant factor as consistent with territoriality underpinning of copyright law </li></ul><ul><li>-Justice LeBel also concerned that rights holders would demand information about end users in monitoring their copyright and breach privacy in trying to determine source of infringement </li></ul>
  48. 48. SOCAN Cont’d <ul><li>-ISPs and other intermediaries sheltered by exception if restrict their activities to providing a conduit for information and do not engage in acts that relate to content </li></ul><ul><li>-Key points were lack of knowledge of the infringing contents, technical and economic impracticality of monitoring vast amount of material transmitted, and use of necessary means to transmit (routers, software connection equipment, connectivity services, hosting and other communications facilities and services) </li></ul><ul><li>-ISP and web hosting providers can be liable for copyright if act as content providers </li></ul>
  49. 49. SOCAN Cont’d <ul><li>-Caching by host server (host server stores, makes available and transits web site content to end user) does not attract liability if host a mere conduit, but host servers can be liable under the Act even if not located in Canada </li></ul><ul><li>-Caching enables faster and more economic service and is content neutral and the technique, per se, should not be prohibited as it would impede growth </li></ul><ul><li>-impossible to impute actual knowledge of infringement to ISPs because of massive amounts of materials on the Internet </li></ul><ul><li>-However, once notified of infringing use or material, failure to remove the material can result in ISP’s liability by authorizing the placement of infringing material on the server (- essentially the DMCA “notice and take down” rule) </li></ul>
  50. 50. Remedies <ul><li>-Injunction, wide injunction (neither available for buildings) </li></ul><ul><li>- Usually one of, damages and profits (value of sales) or in lieu thereof, statutory damages which range from $200-$20,000 per copy </li></ul><ul><li>-Other standard remedies such as interest, punitive and exemplary damages, delivery up and costs </li></ul><ul><li>-Conduct and knowledge of defendant key </li></ul><ul><li>-With Internet, jurisdiction issues complex and enforcement strategy will depend on where the server is located, the local legislation and case law, the treaties which apply and applicable jurisdiction common law tests </li></ul><ul><li>-“Real and substantial connection” tests different for civil and criminal activities </li></ul>
  51. 51. Collective Societies <ul><li>-Collective bodies collect fees (pennies which add up) on behalf of rights holders through market negotiation or pursuant to a tariff approved by the Copyright Board </li></ul><ul><li>-SOCAN- public performance and communication to the public by telecommunication </li></ul><ul><li>-Copyright Collective of Canada-broadcast of distant signals containing music and film </li></ul><ul><li>-Collectives can commence proceedings against non paying users </li></ul><ul><li>-Issue as to whether there should be umbrella collectives for all Internet uses </li></ul>
  52. 52. Blank Recording Media (Private Copying) Ss.79-86 <ul><li>-Fairly recent provisions (1997) whose roots go back to old cases dealing with legality of home taping (Canadian courts held it was unreasonable to charge defendants for selling tape machines as they could be used for legitimate practices and reluctance by the courts to find retailers and kids guilty on the evidence) </li></ul><ul><li>-One can copy for private use and no infringement of musical work, sound recording or performers’ performance </li></ul><ul><li>-But, manufacturers and importers of blank audio recording media must pay a levy in respect of such reproduction for private use, decided through the tariff process (collective, objectors, Copyright Board) </li></ul><ul><li>-The collective distributes the levies to the collective societies representing eligible authors, performers, makers in proportions fixed by the Board </li></ul><ul><li>-Specific rules regarding reciprocity and neighbouring rights </li></ul><ul><li>-Exemptions or refunds for uses for persons with perceptual disabilities </li></ul>
  53. 53. Cases re Levies <ul><li>Apple Canada Inc. v. Canadian Private Copying Collective (F.C.A. January 10, 2008) (No levy on iPods) </li></ul><ul><li>-CCPC filed a Tariff to collect on digital audio recorders (up to $75 on iPods) </li></ul><ul><li>- CPCC has collected over $150 million since 2000 -21 cents on every CD for personal copying -and may file to extend Tariff to PC’s, cell phones, etc. </li></ul><ul><li>-The Court held that the Copyright Board had no jurisdiction to certify a blank media levy on iPods and other MP3 music players or on the memory permanently embedded in them and awarded costs against the Board </li></ul><ul><li>-The Court followed previous 2005 F.C.A. decision in CCPC v. Canadian Storage Media Alliance </li></ul><ul><li>-Court awarded costs of the application, payable by CPCC </li></ul><ul><li>-View exists that the whole scheme of levies should be dismantled </li></ul><ul><li>“ They are the mess of pottage for which the birthright of strong copyright protection was foolishly sold by the music industry, and they continue to wreak inequitable industry, and artist-cross subsidies” </li></ul>
  54. 54. Cases Cont’d <ul><li>Canadian Private Copying Collective v. Canadian Storage Media Alliance et al . (F.C.A. 2004) </li></ul><ul><li>-Court held that the private copying regime set out in the Act is valid and not a tax </li></ul><ul><li>-Illegality of CPCC’s zero rating scheme (practice of exempting select business users) </li></ul><ul><li>-Digital memory permanently embedded in devices such as MP3 players does not constitute blank recording media as defined in the Act and therefore not subject to a tariff </li></ul>
  55. 55. File Sharing <ul><li>BMG et al v. John Doe et al (F.C.A. 2005) (File sharing may be illegal in part (the uploading part) but evidence lacking in this case) </li></ul><ul><li>-CRIA launched a suit against 29 or more Internet users who had shared thousands of copies of music files online </li></ul><ul><li>-The lower court trial division found no evidence of infringement </li></ul><ul><li>-The appeal court ruled that the trial court conclusions on the legality of music file sharing online were premature and could not be used as a precedent </li></ul><ul><li>-The Copyright Policy Branch of the (federal) Government has stated that the new Copyright Bill will include a new “making available” right which will confirm the current state of the law, that is that the unauthorized sharing of online music is illegal </li></ul>
  56. 56. Positions of Collectives <ul><li>Creators’ Copyright Coalition (CCC) Position </li></ul><ul><li>-Not all creator groups have signed on to the CCC’s position to; </li></ul><ul><li>-levy all works and media </li></ul><ul><li>-extend exhibition right , introduce droit de suite and performers’ right for reproduction , eliminate discounts for small broadcasters </li></ul><ul><li>-prohibit public readings of large extracts </li></ul><ul><li>-make ISP’s more active through notice and take down provisions </li></ul><ul><li>CRIA’s Position </li></ul><ul><li>Private copying levy will kill the digital music market </li></ul><ul><li>CRIA argues that &quot;no service can compete with something that is free&quot;.  It also argues that the Copyright Board was wrong to say that without the expansion of the levy it would &quot;instantly make the conduct of millions of Canadians illegal, and even possibly criminal&quot;, noting that making private copies could not be a criminal offense in Canada </li></ul>
  57. 57. Positions Cont’d <ul><li>CRIA On File Sharing </li></ul><ul><li>-Canadian Recording Industry Association wants tougher laws to make it easier to prosecute people for file sharing </li></ul><ul><li>-Wants to address on line infringement and secure new business models </li></ul><ul><li>Canadian Music Creators Association On File Sharing </li></ul><ul><li>-Members include Sarah McLachlan, Sam Roberts, Avril Lavigne, do not want music fans prosecuted </li></ul><ul><li>-CMCC recognizes the importance of file sharing as a way to spread the word about Canadian music </li></ul>
  58. 58. Music Artists Give Away Music For “Free” Or Do They? <ul><li>-Coldplay gave away the first single from its new album for free in downloadable form over the Internet, for one week beginning April 29, 2008 and a seven inch vinyl version with a magazine on May 7, 2009 (Reuters) </li></ul><ul><li>-It also had a free concert in each of London and NYC </li></ul><ul><li>-Prince gave away his album Planet Earth for free with copies of a weekly newspaper, angering retailers and his record label in the process </li></ul><ul><li>-Radiohead also offered one song for free for a limited period of time over the Internet </li></ul><ul><li>-While showing deference to the Internet community, these artists are really implementing standard marketing techniques to sell their works </li></ul><ul><li>-Key is that the artists control the use of their works, understand their promotional goals, and hope to increase sales </li></ul><ul><li>-It may be that a standardized approach will emerge in deference to consumer expectations, not much different than cosmetic companies’ ubiquitous gift with purchase programmes </li></ul><ul><li>-Bottom line is that the free songs are promotional teasers or bait </li></ul><ul><li>-Free downloads of software, e.g. anti-virus software, are usually older versions which act as a promotion for the newest version, for which there is a fee </li></ul>
  59. 59. The Ring Tone Case <ul><li>Canadian Wireless Telecommunications Association, Bell Mobility Inc. And Telus Communications Company v. Society of Composers, Authors and Music Publishers of Canada (F.C.A. January 20008) </li></ul><ul><li>-Court held that transferring a file, i.e. the transmission of data, in this case a ring tone, which is not intended to be performed in conjunction with its communication, is a “communication by telecommunication” of a work and subject to a royalty </li></ul><ul><li>-The Telcos had paid a reproduction rights royalty to the appropriate collectives (including CRIA) to enable users to use the ring tones on their cell phone pursuant to negotiations and arrived at a market rate of 8.8% of purchase price </li></ul><ul><li>-SOCAN now entitled to an additional 3.4% approved by the Copyright Board for the “performance right” </li></ul>
  60. 60. Ring Tones Cont’d <ul><li>-If the Telcos deliver the ring tones by CD, or pre load the phone no extra fee </li></ul><ul><li>-Court felt it was possible that the performance could be perceived during transmission? </li></ul><ul><li>-Court failed to appreciate that the true mischief is when no fees are paid for streaming when a “performance” is communicated </li></ul><ul><li>-Result of case is that there is double dipping by rights holders, and that you must own both the reproduction and performance right to for electronic transmission </li></ul><ul><li>Telcos have filed for Leave to Appeal from SCC </li></ul>
  61. 61. Framework For Posting Copyright to the Internet <ul><li>A dance company wishes to post a digital recording of a work of choreography. How would it proceed? </li></ul><ul><li>1. What rights does it own or what licences does it enjoy? </li></ul><ul><li>-Assume the choreographer retains ownership but has licensed the Company to use the work </li></ul><ul><li>-The Company will need to check that all underlying rights in the choreographic work extend to the proposed Internet use and digital recording. Costumes, lighting, libretto, music, may attract copyright so permissions need to be confirmed </li></ul><ul><li>-Will all of the work be recorded or only highlights? </li></ul><ul><li>-The choreographer will also have to grant the digital rights to the Company, and negotiate moral rights including approvals over final cut, choice of director, lead performers, etc. </li></ul><ul><li>-Rights need to be clarified in terms of duration, territory, web site location, size, placement of notices of authorship </li></ul><ul><li>-Who will own the digital recording and what royalties, if any, will flow from it and to whom? </li></ul>
  62. 62. Framework Cont’d <ul><li>2. What is the purpose of the Internet posting and what rights needed to give effect to same? </li></ul><ul><li>-Given the ability of users to browse, download, archive, make copies for personal use, etc., will there be clear perimeters of use? Check the web site for legal terms and conditions. Ensure no unauthorized uses occur by stating same explicitly on web site (remixing, derivative works) and make sure the web site terms and conditions are consistent with the grant of rights enjoyed by the posting Company </li></ul><ul><li>3. Note that the purpose and site location will affect the negotiations </li></ul><ul><li>If the work is being recorded for scholarship purposes or posted on a scholarly or research site, the use restrictions will differ from those on a purely entertainment site </li></ul>
  63. 63. Terms of Use <ul><li>-For an idea as to what rights are normally required to post work on the Internet, look at different sites, such as Yahoo, Lulu.com, Creativecommons.org (following), library sites, Google, etc. </li></ul>
  64. 64. Creativecommons.org <ul><li>Review Conditions </li></ul><ul><li>Creators choose a set of conditions they wish to apply to their work. </li></ul><ul><li>Attribution . You let others copy, distribute, display, and perform your copyrighted work — and derivative works based upon it — but only if they give credit the way you request. </li></ul><ul><li>Noncommercial . You let others copy, distribute, display, and perform your work — and derivative works based upon it — but for noncommercial purposes only. </li></ul><ul><li>No Derivative Works . You let others copy, distribute, display, and perform only verbatim copies of your work, not derivative works based upon it. </li></ul><ul><li>Share Alike . You allow others to distribute derivative works only under a license identical to the license that governs your work. </li></ul>
  65. 65. Creativecommons.org <ul><li>Select License </li></ul><ul><li>Select the license that indicates how others may use your creative work. </li></ul><ul><li>Attribution (by) </li></ul><ul><li>Choose by license </li></ul><ul><li>This license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation. This is the most accommodating of licenses offered, in terms of what others can do with your works licensed under Attribution. </li></ul><ul><li>Read the Commons Deed | View Legal Code </li></ul><ul><li>Attribution Share Alike (by-sa) </li></ul><ul><li>Choose by- sa license </li></ul><ul><li>This license lets others remix, tweak, and build upon your work even for commercial reasons, as long as they credit you and license their new creations under the identical terms. This license is often compared to open source software licenses. All new works based on yours will carry the same license, so any derivatives will also allow commercial use. </li></ul><ul><li>Read the Commons Deed | View Legal Code </li></ul>
  66. 66. Creative cont’d <ul><li>Attribution No Derivatives (by-nd) </li></ul><ul><li>Choose by- nd license </li></ul><ul><li>This license allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you. </li></ul><ul><li>Read the Commons Deed | View Legal Code </li></ul><ul><li>Attribution Non-commercial (by-nc) </li></ul><ul><li>Choose by- nc license </li></ul><ul><li>This license lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms. </li></ul><ul><li>Read the Commons Deed | View Legal Code </li></ul><ul><li>Attribution Non-commercial Share Alike (by-nc-sa) </li></ul><ul><li>Choose by- nc - sa license </li></ul><ul><li>This license lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms. Others can download and redistribute your work just like the by-nc-nd license, but they can also translate, make remixes, and produce new stories based on your work. All new work based on yours will carry the same license, so any derivatives will also be non-commercial in nature. </li></ul>
  67. 67. Creative Cont’d <ul><li>Attribution Non-commercial No Derivatives (by-nc-nd) </li></ul><ul><li>Choose by- nc - nd license </li></ul><ul><li>This license is the most restrictive of our six main licenses, allowing redistribution. This license is often called the “free advertising” license because it allows others to download your works and share them with others as long as they mention you and link back to you, but they can’t change them in any way or use them commercially. </li></ul><ul><li>Read the Commons Deed | View Legal Code </li></ul><ul><li>Your license choice will be expressed in three ways: </li></ul><ul><li>1.       Commons Deed . A plain-language summary of the license, complete with the relevant icons. </li></ul><ul><li>2.       Legal Code . The fine print that you need to be sure the license will stand up in court. </li></ul><ul><li>3.       Digital Code . A machine-readable translation of the license that helps search engines and other applications identify your work by its terms of use. </li></ul>

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