Laurel L. Russwurm's Free Culture Blog

a writer, the copyfight and internet freedom

Copyright Fallacy #5

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A Maple leaf enclosed in the copyright symbol

CLAIM: Copyright Protects Creators Work

REALITY: Not true for most creators.

We have this idea that copyright provides some kind of magic protection to the work we write, draw, film or compose. Yet the reality is that the only way for creators to assert our “rights” under the copyright monopoly, is by going to court.
Which can become very expensive.

When I began writing, I learned that all Canadian creative work was automatically covered by copyright. A standard practice to prove ownership and provide documentation was to mail a copy of the work to yourself, and keep it in the sealed envelope against the day you might need to assert your copyright in the work. The sealed envelope was supposed to prove the work existed on the date verified by the government postmark.

Of course, nowadays I don’t know how successful that would actually be, since postal automation means that a lot of mail doesn’t actually get postmarked, or if it is, not legibly. Worse, these days Canada Post doesn’t offer any reasonably priced shipping options.

When I began writing spec television scripts, and submitting them to American television production companies, I took the precaution of first registering them with the Writers Guild of America.  Canada Post then offered a service called “return receipt requested”, which meant a bright pink postcard was added to the exterior of the package. When the package was delivered, someone had to sign the postcard, which then went back through the mail to me. An ingenious system that provided a nice physical receipt. In the event I wanted to issue a copyright challenge, I would have a chain of evidence.

registration

Like the United States, Canada also has a Canadian Intellectual Property Office, and you can register your work there for a $50 or $65 fee. It isn’t very much, right?

Of course, it could get awfully expensive for a haiku poet or a short story writer. Or any creator, really. Fifty dollars is a lot when publishers still mostly pay pennies a word. There is no doubt in my mind that most Canadian creators don’t register their copyright in light of CIPO’s high fees. Why bother, when everything we create is automatically protected by copyright anyway. Yet CIPO gets registrations.

I am quite sure they get copyright registrations from publishing companies. From record labels. And from film and video production companies. Just not much from the people who actually created the works.  Unlike most creators, these companies have money to spend… money earned from copyright.

what if…

…you think George Lucas copied Star Wars from the script you sent him?  If you do, copyright law won’t magically hand over a 2 billion dollar cheque.  First, you have to hire a lawyer, and then you have to prove it in court.   You must have evidence that (a) George actually opened your envelope and (b) actually read your idea.   Even if you could prove this, how long would it take in court?

Copyright only works the way we think it works for those creators who can afford to use the court system.  Americans can prosecute a lawsuit in the United States if they convince a lawyer the claim has merit and the lawyer is willing to take the case on spec in exchange for a hefty chunk of the settlement.   So if your American Lawyer believes your lawsuit might be winnable, s/he may take it on for the twenty or thirty years that George’s lawyers would be able to stall.

However, lawsuits work a little differently in Canada. Canadians have to pay our lawyers every step of the way, so lawyers don’t take cases on spec.   It makes no difference if you are in the right, if you run out of money the case is closed.

It stands to reason that if $50 was too steep a price to pay to register your script, paying legal fees over decades will be too costly for most Canadian creators.  Because most Canadian creators don’t make a living from our creative work; we need day jobs to pay the rent.

recourse

Copyright law is not magic, the only way it “protects” writers is by allowing us to sue anyone who infringes our copyright. Would I sue a company I’d sent my work to if I thought they had infringed my copyright?

If I did, I might get a wildly lucrative settlement. But would it be enough to live on for the rest of my life? Because the very real effect of any such suit would be that no other production company would ever dare risk opening an unsolicited manuscript from me ever again. Lawsuits are sometimes seen as quick and easy way to make money, but it’s never a good business to sue your potential market. Not if you expect to make a living from your work.  So even with my copyright proof or WGA registration in hand, I very much doubt any provocation would have made me sue.

Creators who still believe copyright protects them should consider what would happen if they had to assert their copyright in court. If it comes to a copyright challenge, will the court believe you when you present your bedraggled postmarked envelope you claim to have mailed to yourself? Or will the court be dazzled by the signed and sealed CIPO copyright registration made by the glamorous Movie Company you allege infringed your copright? After all, there are opportunists everywhere. Envelopes have been steamed open before … and who can even say that what is in the envelope is what was mailed on the postmarked day?

Will the court believe the no-name writer or the brand name Corporation backed up by the authority of a goverment agency?

court is always a gamble

Even if you go to court, there are no guarantees you’ll come out of it with what you want. Sometimes vindication carries a hefty price tag, as can be seen by Howard Knopf’s EXCESS COPYRIGHT: A Cautionary Tale of Costly Copyright Litigation Consequences: How to Win a Little and Lose a Lot

who can afford copyright remedies?

The few creators who can afford to use copyright to protect their work are those few creators rich and powerful enough to take on the handful of powerful media companies that control the mainstream market.  That lets most of us out.

And, of course, the handful of multinational media companies that control the media industry can afford copyright remedies.  That is, of course, why copyright law keeps getting longer and wider.

what do you want to spend your life doing

While lawyers may prefer to spend their days in court, me, I would rather spend my days writing.  Because I’m a writer.



Canada’s majority government passed Bill C-11 in June, 2012, transforming the co-called “Copyright Modernization Act” into “The Copyright Act,” in spite of unprecedented Canadian opposition. The tragedy is most Canadians are unaware of copyright issues and don’t yet realize the growing impact it exerts over our daily lives.
This is the fifth in my Copyright Series:

Written by Laurel L. Russwurm

December 6, 2012 at 9:00 am

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