Navigate / Create

Helping bloggers navigate the law

Archives for July 2014

Why I write

I’m taking a short break from writing about the law to bring you something different this week. My beautiful friend Tash from Healthy You Happy Me has invited me to participate in a blogging challenge to tell you about why I write. (Check out Tash’s post on this subject, it’ll knock your socks off!) This might seem like a strange tangent for a law blog, but I actually think it’s more connected than it seems. Copyright is intimately concerned with creativity and at heart I, too, am a creative soul. We all are.

 

What Am I Working On?
I have two major projects going on right now – this blog (of course) and my PhD (which is truly major). But I don’t want to talk about those projects in this post (well, a little about the blog). I want to talk about the writing I do for fun – the scribblings, the stories, the scraps of poetry.

Why Do I Write?

(1) I write because I must
Writing is a feeling for me. Sometimes the feeling washes over me, a strange mix of yearning and nostalgia, with just a hint of melancholy. Yearning for what, I don’t know. Nostalgia for nothing I can exactly put my finger on. It’s an entirely concocted nostalgia, because it is not for a time or place that is my real experience. But yearning and nostalgia are the best way I can describe it. And when that wave comes I must sit down and I must write it out. I must let it flow through me. I lose myself in that feeling and there is no coming up for air until it’s ready to release me.

This is the great paradox at the heart of copyright, one I find immensely interesting. Copyright is built on an incentive theory – it reasons that we must provide creators with legal protection and a means to sell their creations, because if they can’t make a living from what they create then they simply won’t create. There is a kind of logic to this. But things are not actually that simple. Speak to any creator about creativity and they won’t tell you about incentives. They talk about creativity as a compulsion. They create because they must. Because it is there, inside of them, and if they don’t express their creativity it will torment them, like some kind of demon. I’ve linked to it before, but Elizabeth Gilbert expresses this wonderfully in her TED talk. I understand what creators mean when they say these kinds of things. Often I write because there is no way I cannot.

(2) I write because words are my balm
I love all art – I can appreciate the beauty in visual art, or the genius behind a piece of music. But nothing can move me the way words can. It’s just how I’m programmed. (I cannot stand songs with lazy lyrics!) The right words, written in the right way, can send a shiver down my spine. They can bring me to tears. They pulsate through me. They can heal me. Most recently, I stumbled across this poem and it shifted something in me. My life is a trail of books, poems, speeches and lyrics that lay littered in my wake.

(3) I write because it is my outlet
I am a legal academic. I spend my life researching and writing about the law. I do this because I like it, but if I did only this I would go slowly insane. I have two outlets to keep me grounded and feeling creative and alive – yoga and writing. Through writing I can explore a different side of myself and I can look at the world in a more imaginative way.

I am endlessly fascinated with people who work as ‘professionals’ in demanding, high-powered careers, but who also have secret loves – other activities that really express their creativity. Sometimes it’s writing or blogging (like me), but sometimes it’s something really unexpected. I love discovering what people’s hidden passions are. The world is full of brilliant, multi-passionate people.

(4) I write this blog because I want to help people
I think it’s easy, once you’ve been involved in the law for a while, to forget that it’s not something that most people know about or understand. Like with any skill, you start to take the things you’ve learnt for granted. But every now and again someone will come to me with a question or a negative experience, and I remember that the law can be quite an intimidating and confusing thing. My number one aim with this blog is to be of service. To help people. To empower bloggers to do their thang – to create, to collaborate – secure in the knowledge that they have a grasp of the legal aspects of what they do and secure in the belief that they are supported. This blog helps me, on a personal level, to write regularly and to connect with some truly magnificent people. But at the end of the day it’s not about me. I do this for you.

This blog can be heavily legal at times, but I’m trying really hard to make the Facebook space more of a creative hub – focusing on creativity as a process as well as the legal conditions around it. I’ll be posting more videos and images over there from now on, with the hope that I can help to inspire my readers’ creativity. If you think you might be into that, jump on over and like Navigate Create on Facebook.

How Does My Writing Differ From Others In Its Genre?
Oh dear, this presumes my writing has a genre! It doesn’t. And I’m not even sure how different my writing actually is from other people’s. I don’t know and I don’t question it. I write for me, so it doesn’t really matter if there is some mimicry of the masters in there. There is something of me too, and that’s the important bit.

For the blog, my one goal is clarity. If I’m not explaining concepts clearly, then my blog is not doing its job.

How Does My Writing Process Work?
I’ve already described how writing is a kind of feeling for me. Basically, I do what one of my creative writing lecturers once described as “word vomit”. I sit down and spew it out. (Gross) When I’m properly in the zone I’m not thinking about it. I’m just writing.

When I’m writing for my PhD or work, the process is entirely different. Entirely more painful. I do lots of planning, structuring and mapping out. Sometimes I get stuck on this stage far too long. It is one area where I still experience some fear and a lot of the resistance – the just start writing! part. The day when my academic writing process is more like my fiction writing process is the day I will be one very happy little camper.

Passing On The Baton

Now it’s my turn to pass on the blogging baton!

I am so freakin’ excited and honoured that the three ladies I asked to participate all said YES! Let me introduce you to these incredible women:

March AvaAnnie Pappalardo
Not only is this gorgeous soul a kick-ass radio producer and one of the brightest + bubbliest people you will ever meet, but she also happens to be my StepMum. Yep, keeping it in the family!  Annie is the perfect person to pass the baton to because she is a writer through-and-through, and a talented one at that. She keeps a blog over at Life & Dandelions and is currently working on her first novel. I can’t wait to see her name on the bookshelves one day!

 

Carly Stephan
Carly is one of those amazing people I was talking about above, who manages to juggle an important career in international aid and development with her creative pursuits. (In fact, she’s currently doing field work in Fiji, helping to empower local women. Did I mention that she’s amazing??) Carly’s blog is Pockets of Peace, an oasis of sparkling positivity and light. It will lift. you. up. It really is the digital embodiment of Carly herself. I have so much admiration for this lady!

 

 

TAR_Tahlee_wall-e1350186822439Tahlee Rouillon
Tahlee is one of the most down-to-earth and hilarious people I know. Her Facebook posts make me laugh out loud, and I swear that I give her at least one mental high five each day. She just speaks my language. Tahlee also oozes creativity. She is living her life purpose by making out-of-this-world music that literally impacts your brainwaves to help you feel more focused and relaxed. Check out her meditones for yourself; they are brilliant.  Her blog is The Attitude Revolution.

 

 

TashWhat a troop, huh?! I’m really looking forward to reading their posts. And thanks again to my soul sister Tash for passing the baton to me. Tash and I became firm friends through the magic that is Groove Dance, of which Tash is a facilitator. It’s the most fun you can have exercising, and it’s a fabulous opportunity to meet kind, supportive and totally-on-your-wavelength people – trust me! :p

 

Next week we’ll be back on the law train, with post 2 in my series on collaborations. See you then!

Copyright ownership and collaboration

The general rule of copyright ownership is that the person who first created the work owns copyright in it. 

This general rule can be varied by agreement or special circumstances. These will be covered in later posts. In this post I want to look at how copyright ownership is determined for collaborative works.

After all, that’s what we’re all about, isn’t it? Connection and collaboration. Co-written e-books, profiling other people’s work in your blog posts, getting someone to help out with the design of your online offering. These sorts of things are an important part of being a blogger.

When dealing with collaborative works, the question to ask yourself is this: Can you separate out what you did from what the other person did?

If you can, you will each own copyright in your respective parts. If you can’t, because your work is so closely entwined, then you will be co-owners, together, in the whole collaborative work.

Side note: It is important to note that co-owners (or “joint authors” as they are sometimes called in copyright) must each contribute to the work as a creator. In other words, they must contribute original expression. They cannot contribute only ideas or facts or something non-original.

These legal principles can best be demonstrated with a few examples:

Scenario 1

Sansa and Arya write an e-book together. Sansa writes chapters 1, 3 and the first half of chapter 5. Arya writes chapters 2, 4 and the second half of chapter 5.

Sansa will own copyright in the chapters she wrote and the part of chapter 5 that she wrote. The same goes for Arya.

Sansa can give permission to Cersei to use the parts of the book that Sansa wrote, and she can even transfer copyright ownership in those parts to Cersei if she wishes. But she cannot give permission for the parts that Arya owns. This means that if Sansa wants to give Cersei permission to copy or publish the entire e-book then she will need Arya’s permission as well.

In fact, if Sansa wants to post a sample from chapter 2 on her own blog she will still need Arya’s permission, because Sansa does not own copyright in chapter 2.

Scenario 2Again, Sansa and Arya decide to write an e-book together. They brainstorm and plot out the chapters together. They write the book using Google Docs, adding sections and making changes to each other’s work. They go back forth, adding, deleting, editing, until they can no longer remember whether it was Sansa or Arya who put those particular words into that particular section.

This is what we call a collaborative work or, in copyright lingo, a “work of joint authorship”. It is not possible to separate out Sansa’s work from Arya’s work.

In this scenario, Sansa and Arya own copyright in the whole e-book together. They are co-owners. They  both need to give permission to other people to use the work, one cannot give permission without first consulting the other.

For example, let’s say that Cersei emails Sansa and asks if she can post a sample of the e-book on her blog, to boost page views of her blog but also to boost sales of the e-book for Sansa and Arya. Sansa cannot give the go-ahead to Cersei without checking with Arya first.

Sansa also cannot transfer copyright ownership in the e-book without Arya. So pretend that Hay House wants to turn the e-book into a physical book, but wants copyright in the e-book transferred to them first. Both Sansa and Arya have to agree to this, not just one of them.

In fact, strictly, Sansa cannot herself exercise one of the exclusive rights without consulting with Arya first (and vice versa). This is a tricky situation, because it can potentially put the girls in a deadlock where neither one of them can use the work without checking with the other each and every time she wants to do something. The best way to deal with this is to agree upfront about what things they can do without first asking each other. This blog post is the first in a three part series on collaboration. I’ll be covering what things you should do and discuss before collaborating in the third post of this series.

scenario 3

Let’s say we have the same situation as in scenario #2, but Sansa and Arya have also asked Daenerys to do the design, formatting and layout of the e-book for them.

All the same principles will apply as in scenario #2 with this added complication – Daenerys will own copyright in the design and layout of the e-book. This is called copyright in the “published edition“.

Sansa and Arya can grant copyright permissions or transfer copyright ownership in the e-book as written without the design and formatting. So they can give Cersei permission to put an extract of the text of the e-book on her blog, but this must be stripped of the layout work that Daenerys has done.

To reproduce the work with Dany’s layout work, then Daenerys will also need to grant permission. Same goes with transfers of ownership.

This sums up the ownership arrangements for collaborative works and what the copyright owners can do with their works. I know that some of you may have already collaborated with others and already posted things on your blog (or given permission to others) without first checking with your collaborator. In the next post in this series I’m going to cover implied licences, which can apply to these situations. Thanks for tuning in!

Copyright licences

 

Licences are an important part of copyright law. “Licence” is basically the legal term for copyright permission. When you grant a licence to someone you are granting them permission to use your copyright work in a particular way.

Licences can be limited in a number of different ways. They can be limited by the type of exclusive right. For example, you may grant someone permission to copy your work, but not to perform it publicly. Licences can be limited by purpose, so for example I might grant someone a licence to use my work on their blog but not in their conference seminars. They can be limited by time, so you might grant a permission that lasts for one year only then expires. And they can be limited geographically, so you might grant a licence for use in Australia only, for example.

Licences can have terms attached, such as: “I give you permission to use my photograph so long as you always include a link back to my blog underneath the photograph”. Licences can be granted for free or in exchange for something (usually money). Money paid for a licence is called a “licence fee“.

These limitations are useful for you to know both in your role as potential licensor (the person granting permission) and as potential licensee (the person receiving permission). As licensor, you may wish to place certain limits on the licence you grant to someone in order to maximise the licensing value of your copyright work. As licensee you will want to check that the limits on the licence granted to you do not prevent you from doing what you want or need to do with the copyright work. For example, if you’d like to post someone else’s picture on your blog or in your book, it’s not helpful to have a licence that expires after 6 months.

There are different types of licences, and it’s important to be aware of them because they have different impacts on your rights:

Non Exclusive Licences

These are the most common form of licence. “Non-exclusive” means that the same kind of licence can be given to different people at the same time. For example, I can grant Lisa a non-exclusive licence to post my photograph on her blog, and I can also grant Kristen a non-exclusive licence to post the same photo on her blog.

Non-exclusive licences can be given verbally; they do not need to be written down. However, it is always a good idea to have a written record of anything you agree on with someone else.

Exclusive licence

Exclusive licences are a bit trickier and you should keep an eye out for them. An exclusive licence means that the right is granted exclusively to the licensee. The tricky part is that even the copyright owner is excluded from exercising the right granted for the period of time of the licence and within the jurisdiction of the licence. So if I grant Natasha an exclusive licence to publicly perform my song in Brisbane for a period of 3 months, that means that I cannot perform my own song in Brisbane for the next 3 months and I cannot give anyone else permission to perform the song in Brisbane during that period.

Exclusive licences often arise in publishing contracts – the publisher may take an exclusive licence to publish the book and a non-exclusive licence to copy and adapt the book. This means that only that publisher can publish the book. The author can reproduce the book and give other people permission to reproduce it, but cannot contract with another publisher to also publish the book.

Because exclusive licences are much more restrictive than non-exclusive licences they cannot be given verbally. The law says that exclusive licences must be in writing and signed by the licensor (the person giving the licence).

sole licence

These are exactly the same as exclusive licences, with one small but important difference. Under sole licences, the copyright owner retains the right to do the act covered by the sole licence. So if I grant someone a sole licence to copy my book, they can copy it and I can copy it but noone else can. I cannot grant anyone else a licence to copy my book.

Phew! I know that’s a lot to take in, but it’s important stuff. Licences are highly relevant to your interactions and transactions online. I’ll be highlighting exactly how in future posts.