by Lesley Ellen Harris, JD |CEO of Copyrightlaws.com
Last year you paid a freelance writer to pen an article on corporate social responsibility for your company’s print newsletter and website. Now you have decided to distribute printouts of the article from your booth at an upcoming industry trade show. No problem, right? After all, you paid for that article.
As a conference planner, you commissioned a keynote speaker to write and present a session for a conference. You asked one of your staff to record the performance, and now you have begun playing the recording on your company’s website. No need to ask for permission, right — you paid the speaker for the presentation, so why would there be a problem?
Not so fast — like many copyright issues, the matter of copyright ownership is nuanced. Each situation needs to be examined according to its particular facts.
It may be advisable to seek legal advice for situations that are not straightforward.
Who Owns Copyright?
In Canada, the author of a work is the first owner of copyright in it. Although Canada’s Copyright Act does not define “author” specifically, the term generally refers to the person who created the work, or the person who first put it in a fixed form. The following examples illustrate how this principle works.
Correspondence — The person who writes a letter or email owns the copyright in it, even after they send the item to the recipient.Images — The person who creates an image or takes a photograph is the first owner of
Images — The person who creates an image or takes a photograph is the first owner of copyright in it.
Newspaper, Magazine or Periodical Contributions — Freelancers are authors and the first copyright owners of their individual contributions to newspapers, magazines or periodicals, unless they have agreed otherwise. (Always advisable to get a freelance relationship in writing).
Collective Works — In a collective work like an anthology or a newspaper, as per above, the author of each individual work owns copyright in it. But the person who curates or arranges the works in the collection is the author and first copyright owner in the work as a whole (and they require permission to use the individual works).
Co-Authored Works — When two or more authors collaborate in the creation of a work, like a novel or journal article, it is considered a work of joint authorship. The authors jointly own the copyright in the work and must jointly exercise their rights in it.
Translations and Adaptations — The author and first copyright owner of a translation or adaptation is the person who produces it. However, they need permission from the copyright owner of the original work to create the translation or adaptation.
Musical Works — Where one person writes both the musical score and lyrics for a song, copyright ownership in that work is vested in that person.
Performer’s Performance — A performer own the copyright in their performance of a musical, dramatic, choreographic or other work.
Transcriptions of Extemporaneous Speeches — If a politician makes an off-the-cuff speech at a campaign rally and a reporter transcribes it, the reporter is the person who first puts the speech into a fixed form and therefore is the first owner of copyright in it.
Commissioned Photographs and Portraits — The photographer of a commissioned photograph or painter of a portrait is the owner of the copyright. However, where an individual who commissioned the work for personal purposes may use the photograph or portrait for private or non-commercial purposes, or permit its use, unless the individual and copyright owner have agreed otherwise. Note that different rules apply to such works created prior to 7 November 2012.
Works Made in the Course of Employment — In Canada, copyright ownership of a work created by an employee in the course of their employment belongs to the employer, unless there is a verbal or written agreement otherwise.
Works Made by Independent Contractors — Independent contractors such as consultants are the authors of and own the copyright in their works, unless they have agreed otherwise. Always prudent to set out these relationships in a written document.
Moral Rights — Moral rights protect the honour and reputation of an author and only authors or their heirs can exercise them, regardless of whether the author assigned copyright or it was made in the course of employment and the employer therefore owns copyright. In Canada, however, an author may choose to waive their moral rights.
Keep in mind that ownership of copyright in a work can change, as authors can assign (or essentially, sell) copyright ownership to others. Do your homework to identify the copyright owner.
A reminder that it is good practice to have a written agreement whenever you commission someone to create a work for you, addressing ownership of copyright in the work and how you may use it. If you would like to use the work later for a different purpose, ensure you obtain permission from the copyright owner (whether its author or someone they may have assigned copyright to).
Back to Our Scenarios
Unless you had a specific agreement stating otherwise, the freelance writer owns the copyright in the article that you paid them to write and you may not reproduce or use it in for another purpose without permission.
Absent an agreement to the contrary, the keynote speaker owns the copyright in the presentation you commissioned, and also has rights in their performance of it. You need permission from the speaker to publicly play the recording on your website and you may be required to compensate them for this.
Lesley is a copyright consultant, published author, copyright
Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case. For any particular legal problem, seek advice directly from your lawyer or in-house counsel. All dates, contact information and website addresses were current at the time of original publication.
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