Copyright primer for indie and self-published authors

As a former librarian, I thought I was well-versed in Canadian copyright law but knowing what you can and can’t reproduce is only half the story. As authors we have to worry about defending ourselves from accusations of plagiarism, or worse, dealing with those who infringe on our copyright. I’ve never really worried about defending a claim against me (I keep lots of records), but in the wake of yet another scandal in this genre I realized I was a little fuzzy on what I would do if someone infringed on my copy rights. As a Canadian, was I protected outside Canada? There was also this pesky issue of registering copyright I didn’t fully understand. I’d always understood copyright to be automatic, so why would I pay to register my novel? I was especially concerned because I write for American publishers who would likely defend/ initiate proceedings in the US, so how did that affect me as a non-US citizen? This sent me on a research binge, the results of which I’ve summarized here for others who might be interested. This is not intended to be legal advice. If you are in doubt about your rights talk to a copyright/ intellectual property lawyer in your country.

First up some copyright basics

  • Copyright belongs to the creator (unless you sign it over). All countries in the Berne Convention respect the copyright of participating countries.
  • Across countries that are part of the Berne Convention, copyright is automatic starting at the moment of creation. It is important to keep all drafts (with timestamps) and any email correspondence in the event you need to prove creation date. Mailing yourself a hard copy of your manuscript is not valid evidence. You do not need to register with your local copyright office in order for copyright to apply.
  • Major publishers generally register copyright on behalf of their authors, however in the indie or self-publishing world this is usually left to the authors themselves. If in doubt, check your contract for details about who is responsible for what.
  • Registering copyright (which can cost $50-75 per item depending on where you register) is not necessary but it gives you some “advantages”, mostly around litigation and the amount of damages you can recover. “Registering copyright provides no additional protection beyond what you already have by law. Registration does given you additional legal rights, which are important if your work is infringed.” It’s important to note any advantages are only good in the country in which you registered. Registering won’t stop anyone claiming against you, and if they can prove their stuff pre-dates yours, you are SOL, but registered copyright holders are generally favoured by the courts.
  • You can register in multiple countries. Many Canadian authors register in both Canada and US, especially if the work is marketed in the US.

Now for the Important Stuff

  • I’m oversimplifying things, but if you are making a claim of infringement there are essentially 2 parts to it:
    • Making a claim: this could be an email, a letter, an official cease and desist notice. In many cases this is all that is required to get infringing product removed. Guilty parties (fortunately) have tended to fold quickly. Janet Dailey fessed up as soon as she was outed by Nora Roberts. Many online retailers will pull items until a dispute is resolved because they don’t want to be a party to it. Sometimes proof will be required. If you’re lucky enough to have a publisher, they will likely do all this on your behalf. You don’t need to be registered to do this, however things tend to happen more speedily if you are.
    • Legal action: this is where you (or your publisher) will actually sue for copyright infringement and damages (actual and/or statutory). If you have a publisher, it is generally their responsibility but check your contract. This is usually done if there is a substantial loss of income.
  • In the US, you can only sue someone for infringement if copyright is registered with the US Copyright Office (you can bring a claim without registration, but you won’t be able to initiate a law suit or recover damages). This is only a requirement if the work originates in the US. For now, non-US citizens protected under Berne have a slight advantage here. However, even for non-US citizens, the work must be registered in order to claim statutory damages and/or award attorneys fees. This is a good explanation for Canadians of statutory and actual damages and American copyright law.
  • In Canada, statutory damages “may not exceed $ 20,000, nor is registration a prerequisite to their availability.”

In short, registration seems to be an insurance policy. While you can still prove copyright ownership and take action to have product removed, without registration you have very few options to recover damages. Does that mean registration is worth it?

In my next post I’ll cover some of the things to consider when deciding whether to register copyright.

[Note: several dangerous changes are being proposed to US Copyright law which would force creators to register all works or essentially waive copyright. This is a long but good summary of some of the planned changes]

Key References:

Canadian Intellectual Property Office. A Guide To Copyright.

US Copyright Office. Copyright Basics: 10 Myths About Canadian Copyright Law.

** Hofbauer Professional Law. Registration of Copyright.

SFWA. Copyright.

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