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Intellectual Property

Intellectual Property and Copyright

“Intellectual property” or “IP” is a general term that refers to creations of the mind: literary and artistic works, inventions, symbols, names and images used in commerce, are all examples of IP.

In Canada, the Copyright Act defines “copyright” as the right to produce, reproduce, perform, or publish an original work or a substantial part of an original work. “Work” is broadly defined in Canadian law to include literary, artistic, dramatic or musical work, and may include a wide variety of artistic practices.

Artists generally own their own work and original work is automatically protected the moment it is created. Copyright normally lasts for the life of the author, the remainder of the calendar year in which the author dies, and for 50 years following the end of that calendar year (i.e., copyright protection will expire on December 31 of the 50th year after the author dies). In Canada, it is normally unnecessary to register the copyright in a work for it to be protected. An author or owner can register their copyright with the federal government to get a certificate of copyright as evidence that copyright exists and that the person registered is the owner of the copyright.

There are all kinds of circumstances in which artists either license the use of their work to other people, or sell it and relinquish some or all of their rights. For most productions of an existing work, a producer or theatre company will purchase the ability to use the work in specified ways and at specified times.

Remember that artists will care not only about economic rights (the ability to benefit economically from the work) but also moral rights (attribution and integrity of the work).

Commissions


A producer or theatre company might commission a playwright, composer, translator, etc. to create certain work. Generally the party commissioning the work will pay a commission fee and will get specific rights or exclusivity in exchange, e.g. an “option” to produce the work for a period of time, or a “right of first refusal” meaning that the party commissioning gets the right to decide if they want to produce the work before the artist can offer it to anyone else. The playwright is the author and retains copyright in the work.

Example: Playwrights’ Guild of Canada – PGC Independent Commission Contract

There is generally no copyright in ideas, only in the expression of ideas. When thinking about copyright, remember that the playwright’s control over their work is broad. A producer may want to pay for the right to translate or the right to adapt – otherwise, the playwright would normally keep control over the work.

Playwrights are no longer necessarily the sole authors of a work. Directors and designers (and to a lesser extent actors) push back on this to varying degrees. A producer can negotiate to participate in future revenue streams based on the principle that the producer adds value by taking the risk on development and giving the first production, which increases likelihood of further life for the piece.

Collective Creation


There are different models of collective creation. In “true” collective creation, everyone is an equal owner in the work and partner in decision-making. It is very important to work out in advance what happens to the work completed or ideas discussed if members of the collective disagree on how to proceed. In other models, only some of the group owns or leads, such as in a director-led devising process.

KEY QUESTIONS:

  1. Who is the author? (and/or who is the owner?)
  2. How, if at all, with others be recognized?
  3. Who is entitled to royalties and how much?
  4. What happens if some but not all want to proceed with the project in particular ways? (decision-making and termination process)

Designers


Designers may belong to the Associated Designers of Canada (ADC) or may be independent. Unlike the Canadian Actors Equity Association, membership in the ADC is optional. The ADC provides helpful standard form agreements, including indie contracts (see ADC Independent Producers’ Handbook).

Designers and the ADC are concerned not only with the adequacy of the fee paid but also ensuring that the designer maintains control over the design, how it will appear, and that the producer/theatre company respects the rights of the designer over the work. Intellectual property always stays with the designer, so consider negotiating up front for further use (e.g. for touring, remounts, other types of further life that the show may have).

A designer is not necessarily responsible for safety of design, but should keep it in mind and modify as needed.

When contracting with a designer, be sure to include:

  • Timelines/schedule for production and design deadlines (Preliminary vs. Completed vs. Approved), including if the designer has targets for consulting with the director, production manager or other designers.
  • Budget (consider materials and labour)
  • Any specific considerations related to the show (safety, environmental considerations, particular mobility needs of actors, etc.)

Public Domain and Open Source Material


Producers may want to use copyrighted material in a variety of contexts, for example, adapting a novel to become a play, or using existing images for publicity or promotional materials.

Generally speaking, you must have the permission of the author/owner to use, reproduce or adapt this work. There is an exception to normal copyright rules for “fair dealing”, which allows for the use of other people’s material for the purpose of research, private study, criticism, review or news reporting, education, and satire or parody without having to seek permissions. What counts as fair dealing is a legal determination based on specific factors defined by the courts.

Work that is in the “public domain” is not protected by copyright and can be used without specific permission. For example, a work is in the public domain if the copyright has expired. Being publicly accessible (e.g. on the internet) is NOT the same thing as being in the public domain for copyright purposes. Lots of publicly accessible material is still subject to copyright and should not be used without the permission of the artist/author who created it or owns it.

Various online resources exist where authors have made their work accessible for use by others subject to specific restrictions. The US not-for-profit organization, Creative Commons, has developed a series of licenses that allow creators/owners to specify the uses of their work that they wish to authorize and the extent to which others can copy, distribute or alter their work.

ADDITIONAL RESOURCES

Industry Canada, “Copyright” and A Guide to Copyright
Ministry of Tourism, Culture and Sport, “Legal and copyright
Ryerson University, Public Domain Flowchart
Creative Commons, “Licensing Considerations” (more about Creative Commons licenses and how they work)

Legal Artists Outreach
Artists Legal Advice Service
Clinique Juridique des artistses de Montreal
Artists' Legal Services Ottawa
Dalhousie Legal Aid Service (Nova Scotia based)