Hi Malcolm: I'm not a lawyer either, but am fairly certain you are right on the mark. One point though . . . It has been my understanding that, under Canadian copyright law, it is necessary to expressly claim and register a copyright, whereas under US law, the courts have fairly recently held that that an author has an"implicit" copyright and need not register for the copyright to be valid. Know anything about that? -----Bob H----- On 4/3/2010 2:18 PM, Malcolm Moody wrote: > Hi there Jay, > > Everything you say is absolutely right but you are concentrating > specifically on the "Fair Use" provision of the copyright law and I > believe that the issue at question here is a bit more fundamental. > Anything / everything written or created in Canada is protected by > Canadian copyright legislation. That means that it is the author's > property* . The author can publish it themselves or they can > "license," or employ, someone else to publish it for them. That > means they still retain the copyright of the original but if the > licensee or publisher significantly changes the layout or format then > he/she can claim a copyright on that particular presentation. (In > other works they can protect the work they have put into it.) > Alternately the author may sign over the copyright to the publisher in > "payment" (in part or in whole) for publishing the author's work. > * Unless the author has been specifically employed to create and write > the work, in which case the copyright belongs to the parson, or > corporation, paying the author's wages. > > In the case of obituaries most, as you so rightly say, are written / > created by a family member of someone who knew the deceased well and > simply wants to celebrate the person's passing. Copyright and > personal gain is the furthest thing from their mind. Nevertheless > they do own the copyright and what they do with their creation has to > be judged in that light. When they "employ" a newspaper to publish > the "obit" they are giving the newspaper free reign to typeset, print, > and publish their work in a format chosen by the newspaper (albeit > still using the original words, sentence and paragraph groupings.) In > doing so the newspaper is putting work into the piece and unless the > original copyright holder specifically requires that the newspaper > deed the rights to that work to the author** then that is, at a > minimum, how the newspaper gets to claim copyright on the published > work. > **This is never likely to happen as the newspaper probably wouldn't > agree to publish under those conditions and many, in their > "submission" form - signed when the publication is ordered - make it a > condition that the originator passes all their rights in the piece > over to the newspaper. (Always read the fine print! But even then you > will probably go ahead and tell them to publish because you don't need > a "hassle" at that time and need to get the obit published.) > > There is a popular misconception that the copyright laws > differentiate between those who copy for commercial gain and those who > coy to make freely available. Copyright is about protecting the right > of an originator to obtain a reward for making his publication > available as he sees fit. ANYONE who interferes with his ability to > earn that reward is contravening the copyright law - even if they do > it with the most civic minded motives. The fact is the work is NOT > THEIR PROPERTY to give away! It belongs to the originator. > > OK then. Unfortunately it does seem that newspapers can claim a > copyright on obituaries (without getting into the questionable > morality of these actions) but what needs to be reviewed is exactly > what has been copyright. The copyright law is very clear that > "facts", matters of "public knowledge" and ideas cannot be copyright. > Nor can individual words or common phrases. What can be copyright is > the manner of expression of the fact or knowledge, or the way in which > it is "illustrated." In an oversimplified example: the fact that Fred > died cannot be copyright but you could copyright, "Fred is dead!" and > that would not preclude someone else from publishing "Fred no longer > lives." Note: Again, this is ONLY an illustration. The copyright > law also requires that the work be "significant" and clearly neither > Fred is dead., nor Fred no longer lives are "significant" pieces of > work. > > So looking at the particular case of a newspaper's claim of > copyright: I believe the first thing you need to do is to look at the > paperwork used when they "accept" an order for the publication of an > obit. This is actually a contract and it's wording needs to be > carefully reviewed. Secondly, there are probably grounds under which > a newspaper itself can always claim a copyright on any obit it > publishes. Finally - and this is the interesting bit - any copyright > they claim ONLY applies to the wording and expression they used to > report the death. It CAN NOT apply to the fact that the death took > place or where& when the burial is to be, or to any expression of > desires by the deceased or his/her family, or of any recapitulation of > important events in the deceased's life, or of his family connections, > as these are all facts. Anyone is free to report these facts as long > as they express them using their own words and phrases. One word of > caution though. A simple transcription, i.e., an exact copy made by > reading and rewriting, is still classed as a copy. The facts have to > be differently expressed for it to become a new work. > > I'm specifically NOT commenting on funeral house obits because I > simply don't know enough about that business. > > A final word: The copyright laws come under Civil law not Criminal > law. That means that any accusation of contravening the law comes > from one individual / company and is directed at another individual / > company using the funding of the individuals involved. Unfortunately > this means that the one with the "deeper pockets" has a distinct > advantage. Further the copyright laws were drawn up and enacted quite > a few years ago when the world of publishing was VERY different. The > internet and all it brings with it was not even dreamed of and the > only people doing any significant publishing were well trained and > working for commercially savvy, paper only, publishing houses. Today > almost anyone who can afford a computer and a connection to the > internet can reach a far larger audience that these traditional > publishers. Interpreting the existing copyright laws into todays > environment is far from simple and straightforward. > > Malcolm > > Archive CD Books Canada Inc. > President: Malcolm Moody > PO Box 11 > Manotick > Ontario, K4M 1A2 > Canada. > (613) 692-2667 > WEB SITE: http://www.ArchiveCDBooks.ca > FACEBOOK: http://tinyurl.com/ACDB-Can-on-Facebook > > On 3 Apr, 2010, at 3:00 AM, [email protected] wrote: > > >> Message: 3 >> Date: Fri, 2 Apr 2010 12:47:44 -0300 >> From: "Jay Underwood"<[email protected]> >> Subject: Re: [NS-L] [LL] Chronically Horrid >> To:<[email protected]>,<[email protected]>, >> <[email protected]>,<[email protected]>, >> <[email protected]> >> Cc: [email protected] >> Message-ID:<[email protected]> >> Content-Type: text/plain; format=flowed; charset="iso-8859-1"; >> reply-type=original >> >> The copyright act does NOT prevent you from copying this material >> (Sec. 29) >> if it is for personal use and study, and if you undertake to destroy >> any >> copies once you have completed that study (it doesn't say how long >> you have, >> so presumably you can take your own sweet time.) >> >> Funeral homes do NOT own copyright since they either write the obit >> under >> "commission" (they are being paid) or a family member writes it (I >> have >> written my own, and it sits eagerly awaiting to be unleashed from my >> laptop!), in which case the copyright lies with the person who paid >> to have >> it written, or who wrote it, and I doubt they would even bother to >> sue for >> infringement if the obit did get copied and publicized. >> >> You CANNOT sell or otherwise distribute the copies you do make for >> profit or >> personal gain, or attempt to pass it off as your own work (in other >> words, >> when you know who the creator was, that should be cited as a >> footnote/endnote, even if it is only to cite the CH and the date and >> page of >> publication) >> >> Whether or not Comical Harold does hold the copyright on its obits >> would be >> a matter for lawyers and the courts to decide, but you will >> generally find >> the CH does hold copyright on theCD it sells, so that the CD CANNOT be >> copied and re-sold or otherwise distributed. >> >> You will find that, from time to time, people publishing material on >> the WWW >> cite copyright for themselves for material that is in the "public >> domain," >> because they either don't know the law, or want to deter anyone from >> using >> it on a site that might draw traffic away from theirs. >> >> As the author of five books, with others "in the works" I have to >> understand >> that as much as ten per cent of any of my work could be published on >> the >> WWW, as long as I am identified as the creator, and the sources is >> properly >> cited. >> >> The only time I had an issue was when some person using an internet >> alias >> published almost half of my book "Ketchum's Folly" on a website >> withour >> crediting me as the creator or citing my book as the source. I could >> not >> pursue infringement litigation because I could not identify the >> owner of the >> website, and the ISP at that time refused (or also did not kmow) to >> reveal >> who the person was.. The site has since been taken down. >> >> Jay Underwood >> Elmsdale >> > ---------------------------------------- > Basic List Commands: > > 1. To post to the list > Send a message to: > [email protected] > > 2. How to unsubscribe > a. List mode: Send a message to NOVA-SCOTIA-L- > [email protected] that contains only the word > unsubscribe > > b. Digest mode: Send a message to NOVA-SCOTIA-D- > [email protected] that contains only the word > unsubscribe > > 3. How to subscribe > Send an email containing only the word > subscribe > to [email protected] > > 4. How to change to Digest mode > a. Unsubscribe from List mode (2.a. above) > b. 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Hi Bob, Re your statement about Canadian copyright law: I don't believe that is the case. However, in a brief search I have not found an *authoritative* reference for this. It would be useful if someone could provide such a source. John On [2010-04-03 at 04:30pm] Bob Hegerich <[email protected]> wrote: > Hi Malcolm: > > I'm not a lawyer either, but am fairly certain you are right on the > mark. One point though . . . > > It has been my understanding that, under Canadian copyright law, it is > necessary to expressly claim and register a copyright, whereas under US > law, the courts have fairly recently held that that an author has > an"implicit" copyright and need not register for the copyright to be valid. > > Know anything about that? > > -----Bob H----- <quoted material snipped>