Resources for Writers
All About Copyright by Brenda Tobin
Copyright protections arise naturally once a work is created. If you have written an original literary or dramatic work then no formalities such as registration of the work are necessary to ensure protection. In Ireland the law of copyright is governed by the Copyright and Related Rights Act 2000.
Copyright confers on the author the exclusive right to exploit the work, to receive revenue from this exploitation and to prevent others from doing so. It also normally gives you the right to be acknowledged as the author and object to certain treatment of the work.
The literary work has to also be an original work. This means that it has to be your own work and you have to have exercised skill, judgement and labour in its creation.
As the copyright owner you can transfer your rights by assignment or by will, and this can be for a limited time or in respect of some or all of your rights. This assignment must be in writing and signed by the copyright owner. You may assign the entire copyright in your work. This would happen in a case where you were commissioned to write something and the fee you get reflects the fact that you’re handing over all rights in the work. The other way of selling your work is to grant a licence in it. This is where you give certain rights in the work away for a specific period of time and again the fee should reflect the rights you have granted. Different rights may be granted to different parties. You may grant an Irish publisher exclusive rights to publish the book in Ireland and retain worldwide rights for yourself so that you can sell them elsewhere. Be very careful about agreeing to options on future books in publishing agreements too, as if your first books are with a small publisher, you may want the option to take your next book elsewhere. You may be commissioned to write a play for radio, but you should still be able to put on a performance of the play in a theatre. It is very important to protect as many income streams as possible from your work and keep control of all the different potential income streams. Watch out too for contracts which appear to be licences, but essentially grant all the rights in the work to the other party.
Copyright protection endures long after you die, for 70 years after the date of death in the case of a literary work. An interesting situation arose in 1995, when this period was extended across Europe from 50 to 70 years. The James Joyce’s estate, which was out of copyright and therefore in the public domain, went back into copyright, only to come out again in 2011.
So what is this Fair Dealing or Fair Use as it’s known in the United States? Many creators of copyright material are also users of other people’s copyright material. The law has come up with a tool to allow us to quote and extract from other works in a way that is not a “parasitic use” of that work. It can be used for non commercial research or study, reporting a current event or for criticism and review of the work. When I worked as a solicitor in RTE, I encouraged programme makers to take advantage of this exemption, under my supervision. It is a question of degree as to whether the use is fair: the quantity of the extract used, the context in which it is used, the correct acknowledgement. There has been much case law on the subject, it’s tricky to get right, but it’s a great tool.
Copyright comes under the umbrella of Intellectual Property rights such as trademarks and patents. In a television programme for example, there will be many different copyrights: camera, sound, graphics, director’s input, script, actors, contributors, each will assign or licence their rights to the producer, unless they’re employed in which case the rights to work done in the course of that employment will be owned by the employer.
Moral rights are inalienable, which means that you can’t give them away and they grant the author the right to protect the integrity and ownership of their work.
Ideas are fragile things; they need protection but get none under copyright law. Put them down in a form that does: a literary work or a format treatment and get them out there.
So get your original work out into the world to flourish under the protection of copyright and bring you abundance.
(c) Brenda Tobin
LASA (Legal Advice Service for the Arts) is hosting a series of events on legal service for artists and creators in the Fumbally Cafe - find information on their Facebook Page.
Brenda Tobin, is lawyer with 12 years experience in copyright law, 9 years as a solicitor in RTE and before that as a solicitor in a large London law firm running an advice service for creators.