Written by Sarah Zivoin
What do I own now that I’ve created my masterpiece?
In addition to the physical work that you’ve created, you’ve also established various economic and non-economic rights in it which are protected under Canada’s Copyright Act in Canada and under copyright legislation elsewhere.
- Economic Rights
As the creator of an original work, you may have the right to produce, reproduce, publish, perform or telecommunicate (e.g., broadcast) any version of it as well as to authorize others to use these and other rights. These rights may be transferred by an assignment or an exclusive licence to another person in exchange for “consideration”. In this instance, “consideration” is legal terminology meaning something of value received by the creator in the exchange with the other person, usually money. The Copyright Act provides that in order for this transaction to be legally binding, it needs to be in writing and signed by you as the owner of copyright or signed by another person authorized by you.
- Non-Economic Rights
Non-economic rights, otherwise known as “moral rights”, can be broken down into two rights that you may have as the creator of an original work:
- Right of accreditation or attribution for the work. This is the right of the original creator of the work to be credited, if reasonable in the circumstances. For example, you can choose to be named as its creator, to use a pseudonym or to remain anonymous.
- Right to maintain the integrity of the work. This right enables the original creator of the work to preserve its integrity to the extent that there will be no “prejudice” to their honour or reputation, including the authenticity of a work. In the case of a painting, sculpture or engravings (“sculpture” and “engravings” are defined in the Copyright Act), the work may not be changed in any manner without the original creator’s permission, but a court would probably view and treat changes to some other artistic works similarly. This right also allows you choice as to whether you want your work to be associated with products, services, causes or institutions. For example, you may be able to claim moral rights infringement if, without your permission, your work is displayed together with things that are contrary to what you would wish your work to stand for and this threatens your good name as a result.
Why moral rights are “non-economic” is because they cannot be sold or given away. Even if you were to sell the copyright to your work, you still retain your moral rights in it. The only way for you to give up your moral rights is to “waive” them generally or in favour of a named person or entity. The waiver does not need to be in writing – it may be oral or it may be implied in some circumstances. It can be for all or some of your moral rights and for any length of time up to the end of your work’s copyright protection.
Keep in mind that the economic and non-economic rights provided by copyright ownership are also different from the ownership of a physical work. For example, you might sell a sculpture to someone but that does not necessarily mean that you have sold them your economic rights or waived your non-economic rights in that physical work. The buyer can sell the physical work, but whether they have acquired the right to make or sell copies of it, use photographs of it on postcards, or make any changes to it or to reproductions of it, will depend on whether that buyer also purchased the copyright or obtained a waiver of some or all of your moral rights. Using written agreements with buyers helps to keep clear exactly what they have purchased or obtained from you.
This article is informational and not intended as a substitute for legal advice.
