Sifting through

the public domain

ron hay is a lawyer with the Communications Group at the Toronto law firm of McMillan Binch.

ncorporating copyrighted material in film or television productions requires permission from the copyright owner and/or the payment of a licence fee. If, however, copyright in a work has expired, neither permission nor payment of any kind is required, as the work is said to have ‘fallen into the public domain.’

Using public domain materials can be a cheap and easy alternative to licensing a copyrighted work – why pay for something when you can get something else for free? Unfortunately, it is not always easy to determine if an artistic work is in the public domain. There is no central hotline to call, nor is there one comprehensive source that can certify that a work is yours to use freely.

Diverse copyright rules around the world create a complex web of copyright protection that needs to be sorted out. As more and more projects are produced for worldwide distribution, the web of various national and international laws needs to be considered before using public domain works. Those who mistakenly believe that a certain work, such as Happy Birthday, is in the public domain, may very well be in for a rude surprise. If you make a mistake, a work might end up costing you a lot more than if licensed in the first place, and you face the possibility of an injunction should you be found to have infringed someone’s copyright.

You also risk falling into the trap of using an arrangement or ‘enhanced version’ of a public domain work, as enhancements by an editor or arranger may start the copyright clock ticking again on the ‘new’ enhanced work.

Derivative works

Canadian copyright law gives the owner of a work the sole right to make any adaptations or arrangements of the original. Thus arrangements of works not yet in the public domain by others than the owner require the permission of the copyright owner. If, however, a work is in the public domain, anyone can prepare an arrangement or edition of the work, and the ‘new work’ created is entitled to a ‘new’ term of copyright protection. For example, the original version of Morning Has Broken is in the public domain, but Cat Stevens’ arrangement is still protected.

In most countries lawmakers have chosen to provide copyright protection based on the life of the work’s author. The most common term for copyright is life plus 50 years, although, as you will see below, this term varies from country to country. Until Jan. 1 of this year, copyright protection in Canada for most works was 50 years from the actual date of death of the author. Now the 50-year term is calculated from the end of the calendar year of the author’s death.

There are some exceptions to this ‘life plus 50’ term. For joint works, copyright protection is determined by looking at the date of death of the last surviving co-author, then adding 50 years. For example, George Gershwin died in 1937, so his musical works such as Rhapsody in Blue are public domain. However, Gershwin wrote several songs with his brother Ira, who lived until 1983. A song written by the duo will not enter the public domain until 2033.

Anonymous, posthumous and pseudonymous works in Canada are protected for 50 years after the end of the calendar year of publication, or 75 years from their creation if unpublished. Copyright in photographs, sound recordings and motion pictures in Canada also lasts for 50 years from the end of the calendar year of the first publication. The Canadian Copyright Act defines publication as making copies of the work publicly available.

If you know the author’s name, nationality, and date of death, finding the copyright term is easy. However, it may be very difficult to determine both if and when an author died, as the author’s heirs or executors need not provide copyright authorities with notice of death. The system is further complicated by the fact that different countries provide for different terms of copyright protection.

The u.s., until fairly recently, did not base copyright terms on the lives of authors. Until 1978, copyright protection lasted for 28 years from the date of publication, a term renewable for a further 28 years.

For works created in the u.s. since 1978, the term for most works is, like Canada, based on the date of death of the author. Complicated changeover provisions were incorporated to extend the copyright in works in which valid copyright protection still existed at the time of the change – these must be checked carefully if a work you are interested in existed before 1978.

The American concept of a ‘work made for hire’ creates further confusion. A work made for hire is a work created in the course of employment, and the employer or contractor is deemed to be the author of the work, rather than the individual who created the work. Copyright protection for ‘works of hire’ lasts for 75 years from the date of publication. Virtually all musical recordings and motion pictures fall into this category, providing 25 years more protection for American records and films than their Canadian counterparts.

International implications

If using the work outside of Canada, you need to worry about copyright laws of other countries. As copyright protection stems from statutes which differ from country to country, the international community recognized over a century ago that a transnational regime was necessary to provide reciprocal protection for copyright. The Berne Convention, which provides this regime, boasts of over 80 member countries. It has been frequently revised since 1886.

For a work to be protected under the Berne regime, one of two ‘connecting factors’ must be present: the author must either be a national of a Berne country, or the work must be ‘first published’ there. Once a work is connected to a Berne member country, it receives national treatment within another country that is a Berne signatory: this means that it is given the same treatment in that country as a work created by a national of the country would receive.

A major exception to national treatment is the term of protection which must be offered. Not all Berne countries adhere to the ‘life-plus-50’ term. If the terms of the two relevant countries (the country where protection is claimed and the ‘home’ or connecting country of the work) conflict, then the term is determined by the country where the protection is claimed, and it need not exceed the term in the home country.

An example

The works of French composer Maurice Ravel offer an illustration of this. Copyright protection for musical works in France is life of the author plus 70 years. Ravel died in 1937, so his works are protected in France until 2007. However, as Canada will not provide protection for foreign works for terms longer than those provided to Canadian authors (life plus 50), Ravel’s works are public domain in Canada. If the period of protection in France was 25 years rather than 50 for musical works, Canada would need only provide protection for 25 years.

Ravel’s music is considered public domain in Canada, and using it as such in a Canadian production would not pose a problem for Canadian-only distribution. But, should a sale be made to France, the copyright owners could sue you in France for copyright infringement.

Copyright protection can range from 20 years from the date of copyright registration (Afghanistan, a non-Berne country) to 70 years from the death of the author (Austria, Germany). To further complicate the matter, certain European countries extended the term of copyright to make up for lost opportunities to exploit works during the two World Wars.

What can you do?

So how do you find out if a work is in the public domain? Unlike the American copyright regime, no ‘certificate of public domain’ is available from the Canadian Intellectual Property Office. Given that you need not register a work in Canada to obtain copyright protection, the cipo does not and cannot keep a comprehensive record of copyrights in Canada.

So what can you do? Various options are open to you. A call to the relevant copyright organization can be very helpful, as they may be able to help you determine, relying on their records, whether or not a work is in the public domain. For instance, socan (416-445-8700 in Toronto, with offices also located in Vancouver, Halifax, Montreal and Edmonton) looks after performing rights in musical works on behalf of Canadian and foreign composers, authors and publishers.

The cmrra (416-926-1966) deals with licensing and collecting for reproduction rights of musical works in Canada. The Playwrights Union of Canada (416-947-0201) deals with professional playwrights. The Audio Video Licensing Agency (416-922-8727) administers copyright for owners of master audio and music video recordings. cancopy (416-971-5633) represents authors, other creators and publishers for written materials. Vis*Art (514-845-6061) is a collective for Canadian visual artists (paintings, engravings, photographs, designs and images).

While none of these groups will provide you with a certificate or absolute security that a work is in the public domain, given that they are responsible for licensing, you can gain some comfort if they have no record of copyright in a work.

In addition to checking with the relevant copyright collective, other sources to check include general and music encyclopedias, the Phonolog catalogue of sound recordings, and the National Library in Ottawa. If you know that a work is American, you can check with the American Copyright Office (202-707-6850), which will do a search for you for a fee.

Other alternatives include contacting a music clearance service which will, for a fee, do the searches for you. Keep in mind, however, that the cost of the search may cost more than seeking permission.

Given the lack of a centralized clearing system, using music or other materials that you are not confident are in the public domain can be risky. The works of Vivaldi, Shakespeare and Monet are clearly in the public domain; Maurice Ravel, Stephen Leacock and Emily Carr are authors who may cause difficulties. As you can see, it is a complicated area. If at all in doubt, get professional advice.

(this article contains general comments only. It is not intended to be exhaustive and should not be considered advice on any particular situation.)