Catherine Milne
~ Suggestions for Writers ~
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~ Legalities ~ Copyright
~ Copyrighting an Idea? The Idea/Expression Dichotomy ~ Let's start at the beginning...you have a great idea. You want to develop it but you're worried that sharing your idea with other writers means they might steal your concept. Or you're writing a non-fiction book - the standard in non-fiction is that you submit a proposal of your idea to a publisher and they either yay or nay it - but you're terrified the publisher will say 'nay' and then get an in-house staff writer to create the book. It's almost impossible to protect a 5 sentence idea because chances are the basic concept has been done before. It's your unique twist when you write it that makes the difference. The reality is that if a group is given an idea to develop everyone will create a different work. So relax about sharing brief ideas. They can't be protected but neither can anyone else do what you intend to anyway. But what if you've created a multi-page synopsis of your 300 page novel? Say you've written down a more complete outline. A synopsis that includes the basic plot twists, the story arc, the climax, the red herrings, and of course the outcome - because in any letter to an editor or publisher you have to lay it all out. Never try and be cute by making them guess what the twist is - it pretty much guarantees they'll toss it since they aren't interested in that. They want to know if it's marketable and without knowing the solution they can't assess that. /digression. So you have a decent synopsis that lays it all out. It's brief but detailed enough that anyone using it would create a work substantially like yours. That changes things. Especially if you're working with other people in forums, writers' groups, classes, etc. The reality is that you can protect an idea. It's not well-known and many people will tell you it's impossible to protect a concept. They are wrong. That synopsis is potentially protectable with a few actions. Of course it does depend upon the nation you reside in and its view upon the whole idea/expression dichotomy. The idea/expression dichotomy is about the protection not of the germ of an idea but rather the fleshed out concept. It means if your idea gets stolen you have a chance of successfully taking legal action. Mind you, the people likely to steal the idea are not publishers, editors, or agents. They make their money through developing and selling manuscripts and stealing such is neither in their line of work nor is it conducive to staying in business. The majority of books published are non-fiction and the majority of non-fiction begins as a submitted proposal - a synopsis. If a publisher got a rep for stealing submissions s/he would soon be out of business. It is other writers you want to be careful of. And the vast majority of them are legitimate. If you're in a writing group where everyone is submitting and participating, then chances are no one's interested in stealing your idea since everyone is way too focused on their own babies. So, to protect your work... Read up on the laws relevant to your nation. There are a few linked below. Then follow the following steps (adjusted where necessary to your law as opposed to the American one -- Disclosure of Proprietary Information -- that this is based upon): Make sure that every version of it you have that is made available to other people in general (not talking submission to an editor/agent/publisher here) includes the comment that this work is protected under Disclosure of Proprietary Information on the front cover. State that you own the expression of this idea and sharing, copying, or creating derivative works from it is forbidden since you intend to develop it into a fixed format. Any oral or written discussions specifically related to this work are to be considered proprietary. Consider including a disclosure agreement (scroll to the end of this page for an example relevant to Australia) if you are really concerned (although I'd be wondering why you were working with people that worried you so much!) Include at least a copyright symbol if not the actual word, dates, and authorial name on each and every page. Add a 'confidential under proprietary information' comment to the copyright so that each page is thus protected. Any correspondence you send concerning the work (email, letter, etc) should include a copyright and proprietary information disclaimer at the end. There should be no exception to this if you are serious. Even in a private forum I would recommend you include a tag line for any posts specifically related to protected information. Not because of distrust but because this is your career. There are shortcuts you do not take in an 'out-in-the-paid-workforce' job and the same goes for your writing. Just because it's 'hobby-like' and not paid at this point doesn't mean you shouldn't start the way you intent to finish. With proposals you send to an agent/editor/publisher simply include in the cover letter the intent by you to develop this unique concept into a novel. Note: this is USA specific since this is where I am right now. Australia has a very similar law so the general gist is the same. In the United Kingdom the idea/expression dichotomy was summed up by Justice Peter Smith as "ideas and facts of themselves cannot be protected but the architecture or structure or way in which they are presented can be". Your task is to create an identifiable structure that is protected by law.
~ Copyrighting a Manuscript? ~ The minute your manuscript is complete and in a fixed format (on harddrive, CD, print-out, online, etc) it is copyrighted under the Berne Convention for the Protection of Literary and Artistic Works. Depending upon your nation that copyright generally covers your lifespan plus a number of decades. Answers.com offers a neat summary of the copyright lengths for each country with a link back to the relevant Copyright Act. ~ Australia's Copyright Act of 1968 protects work for an additional 70 years after the death of the author (if the author died after 1955).
Do not put your completed manuscript in an envelope and post it to yourself to get a date stamp (you know, just in case you end up needing to take someone to court for infringement later on). This is another indicator of lack of research into copyright -- and totally useless despite countless recommendations to do so as a cheap way to copyright your work. Why do I say it's useless? Firstly your work is already protected. Secondly there are many ways to obtain that date-stamped copy unethically. You could easily mail yourself a ream of paper and then steam open the seal when it arrives. A few years later slip in your real manuscript and reseal. Voila! You have a date-stamped, sealed envelope containing your manuscript. Only the innocent and naive believe this works. In reality the courts are a bit more savvy. If you are that worried about theft, go out and spend the $30 odd. Send your manuscript in for official registration at the office of copyrights. Paying for a copyright increases the damages you can sue for. And it strengthens your claim to a work in that many people are more fearful of breaching actual notices of copyright. They see that little comment on a work and they go 'can't touch that!' But whether you pay to file notice of copyright or not marking it as copyrighted is a good tactic for general use. You don't need to mark it with the copyright symbol to gain copyright status. (And should you send it to an agent, editor, or publisher do not include a copyright symbol or statement. They know it's legally protected and what you are doing is very insulting and shows your lack of research as an author). However, for all other instances add the symbol and even a statement - this indicates to the general populace (who may not know the law) that your work is protected. That little comment...what should you include? Most people stick with the C in a circle symbol because we all recognise it. Technically it hasn't got any legal force. 'All Rights Reserved' is largely obsolete too but it can add emphasis to your moral rights. To be legally correct you should state the following:
Add an 'All Rights Reserved' and you're done.
The Berne Convention for the Protection of Literary and Artistic Works is adhered to by most of the major nations. It states that "The countries of the Union, being equally animated by the desire to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works, Recognizing the importance of the work of the Revision Conference held at Stockholm in 1967, Have resolved to revise the Act adopted by the Stockholm Conference, while maintaining without change Articles 1 to 20 and 22 to 26 of that Act."
Different countries took this on at different times. But the basic gist is that almost all privately created original artistic works are copyrighted and thus protected -- regardless of possession of a copyright notice or not -- the instance you create them in a fixed format. You write it and it's protected without you needing to lodge any claims or take any action. As of 2007 the following nations are members of the Berne Union. What this means is that a writer of any signatory nation can expect his/her copyright to be upheld within all other signatory nations according to that nation's copyright laws. Your work gets accorded the same treatment as that of authors published within the country: Albania, Algeria, Andorra, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belgium, Belize, Benin, Bhutan, Bolivia, Bosnia and Herzegovina, Botswana, Brazil, Brunei, Bulgaria, Burkina Faso, Cameroon, Canada, Cape Verde, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo (Democratic Republic), Congo (Republic), Costa Rica, Cote d'Ivoire, Croatia, Cuba, Cyprus, Czech Republic, Denmark, Djibouti, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Estonia, Fiji, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Grenada, Guatemala, Guinea, Guinea-Bissau, Haiti, Honduras, Hong Kong, Hungary, Iceland, India, Indonesia, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kenya, Korea (Democratic People's Republic), Korea (Republic), Kyrgyzstan, Latvia, Lebanon, Lesotho, Liberia, Libya, Liechtenstein, Lithuania, Luxembourg, Macau, Macedonia, Madagascar, Malawi, Malaysia, Mali, Malta, Mauritania, Mauritius, Mexico, Micronesia, Moldova, Monaco, Mongolia, Morocco, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Oman, Pakistan, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Qatar, Romania, Russian Federation, Rwanda, Saint Kitts and Nevis, Saint Lucia, St. Vincent & Grenadines, Samoa, Saudi Arabia, Senegal, Serbia, Singapore, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Sudan, Suriname, Swaziland, Sweden, Switzerland, Syria, Tajikistan, Thailand, Togo, Tonga, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Arab Emirates, United Kingdom, United States of America, Uruguay, Uzbekistan, Vatican City, Venezuela, Vietnam, Zambia, Zimbabwe.
Do not ever consider work found on the internet as 'public domain' and thus free of copyright. Unless the author/owner states clearly that the work is to be considered public domain it is not. Rather it is protected by copyright the same as any other fixed form of artistic expression. However once the author has stated it is public domain then it is in its entirety without qualification. Be very careful with this. You cannot grant public domain to your work only when it is used for X-purpose (say educational). If you grant public domain then all of it is up for grabs for anyone to take, alter, and use as theirs. You have abandoned all your rights to that work.
Derivative work means an artistic creation inspired by a copyrighted work. Fan Fiction is a classic example of this. And talking Fan Fiction it would be easy based upon the prevalence of it to assume that derivative work is legal and acceptable. Only if the holder of the copyright has given you express permission to do so. Any other time and it's illegal. Most copyright holders unofficially allow derivative work such as fan fiction however as it maintains public interest in the original and doesn't generate income for the creator of the derivative piece. The problem lies in unauthorised derivative works where the original copyright owner has denied permission and/or where the creator of the derivative piece tries to sell it/claim ownership. Then you're looking at legal action. For us authors this is problematic in a number of ways. Firstly, if you've been inspired by Tolkein, Ben Bova, Sydney Sheldon...make sure that your work is still an original. Don't slip up and use their settings, their plots, or especially their characters. Find your own story and write it. By all means tip your hat to the wonderful works that inspired you to write. But don't regurgitate them and call it yours. Secondly, you might be a sarcastic SOB or into parody or social commentary. You read or watched something and the perfect essay -- a critique of it -- came to mind. Or maybe you parodied it as a novel. Under Fair Use this is possibly an acceptable and legal derivation of the original work whether or not the owner/author likes it. However, you don't get to decide Fair Use. A court does if the owner/author takes offense and hauls you off to legal land. So make sure that you really intended to parody rather than tried to defend your theft by calling it thus. And make sure that your nation's copyright laws allow for Fair Use. The United Kingdom, for example, doesn't have Fair Use or parody allowances. Instead they allow Fair Dealing -- where you can reference or quote for the purposes of researching, reporting, reviewing, critiquing, or personal study. And finally -- and this is the most important aspect in my view -- there's what happens after you sign that contract selling your first book. The publishing House is out to get the best deal it can. That includes possession of as many rights regarding your copyright as possible. One of the commonly sought after ones is Derivative Rights. If you signed those away then you no longer own them and that means unless that publishing house says yes you don't get to write more stories about those characters, that setting, the plot, and so on. In the publishing house does well with book one (or thinks they will) then they'll try to sign you up on book two and so on. So you get to continue the storyline. But if the book flops or the publishing house ends up shelving it (and you neglected to get a reversion of rights clause), guess what? You can't shop book two off to another house or even self-publish it. You'll need to go back and renegotiate with the original house to release your rights back to you! This is one of the reasons why knowing and understanding what the contract says is so crucial.
~ Australia's Copyright URLs
~ Canada's Copyright URLs
~ United Kingdom's Copyright URLs
~ United States of America's Copyright URLs
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2001-2008
Catherine Milne - All Rights Reserved