1. PRESENTED BY THE CANADIAN SENIOR ARTISTS RESOURCE NETWORK ELISE ORENSTEIN, LL.B. JUNE 4, 2012 TORONTO, ONTARIO Copyright and Estate Planning Legacy and the Law

2. Goals of Presentation Basic overview of copyright Understand significance for estate planning Identify assets that attract copyright protection Determine value (monetary or sentimental) Decide whether they are to be destroyed or preserved Decide who will inherent them Decide who will protect your legacy Prepare and plan

3. What is Copyright? Copyright is a bundle of time-limited rights Typically characterized as economic rights and moral rights Purpose is to enable the owner to control the way the property is exploited commercially and to protect the integrity of the work and author’s reputation in it It can be divided and subdivided, licensed exclusively, licensed for free, transferred, sold, portioned off in time, by geography, or withheld from exploitation- or from being published during the term

4. How is This Asset Different From Other Assets? Works that attract copyright meet a threshold of creativity/original labour Society recognizes the benefits of such works Society grants a time-limited monopoly to the creator or owner to encourage him or her to continue creating and to reap the economic benefits in the work Many countries also recognize the need to preserve the integrity in the work and the artist’s reputation

5. What About Estate Planning? Copyrighted works can be bequeathed Act allows appointment of executor of moral rights, who can be a beneficiary or not If author is intestate, works subject to normal rules Income from copyright can survive children First executor of moral rights may need directions on appointment of successor “down the road” Author may wish to withhold publication of certain works to protect privacy of others or have them destroyed

6. Types of Original Works That Attract Copyright Literary  -includes tables, computer programs and compilations of literary works, books, e-books, maps, charts, pamphlets, papers, essays, magazines, sheet music, instruction or repair manuals that accompany a product or service, diaries

7. Types of Original Works That Attract Copyright Dramatic  -includes any piece for recitation, choreographic works and mime (fixed in writing), movies, TV shows, Internet productions, compilations

8. Types of Original Works That Attract Copyright Digital Assets  -includes emails, digital photos, word processing documents, YouTube postings, spreadsheets  -stored in digital memory storage device (a chattel) or in print or other format, or on Flickr, Gmail, Facebook  Can be subject to client identification process- “passwords and user name” and difficult to extract

9. Types of Original Works That Attract Copyright Musical  -any work of music or musical composition, and any compilations

10. Types of Original Works That Attract Copyright Artistic  -includes paintings, drawings, maps, charts, plans drawings, architectural works (any building or structure or any model of one), engravings, photographs, sculptures, compilations of artistic works

11. Types of Original Works That Attract Copyright Collective work  - encyclopedia, dictionary, newspaper, work incorporating work of different authors Compilation  -work from the selection or arrangement literary, dramatic, musical or artistic works-e.g. a musical play, or form the selection of data Works of joint authorship  Produced by the collaboration of 2 or more authors in which the contribution of one is not distinct form the contribution of the other(s)

12. “Neighbouring” Rights Performer’s Performance of  - an artistic work, dramatic work or musical work,  - a recitation or reading of a literary work, or  - an improvisation of a dramatic work, musical work or literary work Rights in Sound Recordings Rights in Broadcast Signals

13. Economic Rights Permit the rights holder to control a work and earn money from it For works that have been exploited, important to prepare the chain of title documents, licenses, registrations, if any, and other paperwork Identify any collective societies appointed by the rights holder

14. Moral Rights Right to the integrity of the work Where reasonable in the circumstances, to be associated with the work as its author by name or pseudonym Right to remain anonymous

15. Moral Rights Mere physical changes to the physical structure or steps taken in good faith to preserve a work do not breach moral rights Right of integrity infringed only if the work is:  -to the prejudice of the honour or reputation of the author  -distorted, mutilated or otherwise modified  -used in association with a product, service, cause or institution

16. Moral Rights Moral rights may be assigned in whole or in part Mere assignment does not constitute waiver of moral rights

17. Moral Rights On death of author moral rights in works pass to  person specifically identified (to whom bequeathed)  person who inherits copyright if no one appointed  person entitled to property if author dies intestate

18. Fair Dealing and the Balance of Rights In Canada, exemption limited to sole purposes of research, private study, criticism and news reporting Source must be attributed for criticism, review and news reporting but not research or private study In U.S., “fair use” defense includes teaching- multiple copies permitted in the classroom

19. Fair Dealing and the Balance of Rights New laws will likely enable owners to prevent circumvention of copyright arising from digital technologies by addressing downloading, file sharing, responsibilities of ISPs, “digital locks” Exemptions also address handicapped users Issue of protecting the rights holders’ economic interests while balancing the users’ reasonable access and use Author may direct that his/her works be made accessible on death- or not

20. Executors and Intellectual Property The Writers’ Union of Canada recommends that a writer appoint two executors;  one for the estate generally and  one (or a team) of whom will deal exclusively with copyright, both the economic and moral rights  Will may also have to address appointment of second or third generation of executors based on the duration of the term

21. Corporations as Executors of Moral Rights? Quirk in the Act regarding photographs, arguably results in corporations, not people, as the holders of the moral rights in the photos S. 10 (2) of the Act may be interpreted together with S. 14 dealing specifically with moral rights, as permitting the original owner of the negative or plate, or photo, as the moral rights owner on death Issues may arise as to proving conduct that is prejudicial to the honour or reputation of the corporation

22. x Duration Nothing last forever- unless it is on You Tube! Generally, 50 years following the end of the calendar year in which the author dies—Life plus 50 Unknown author(s)-earlier of  first publication plus 50 years, or,  75 years from the making of the work

23. Duration- Posthumous Works Generally life plus 50 years In Canada, making a work available on a web site not equal to “publication” By 2048. term for published and unpublished works will be the same Before 1997, there was perpetual copyright in unpublished works- i.e. they could be published 80 years after death and still enjoy copyright protection for 50 years Stephen Leacock’s estate has lost rights already

24. Posthumous Works 50 years not enough time for author’s hiers, likely children and grandchildren, to benefit form royalties from a successful work May be too soon to publish because  Material sensitive for diaries and papers  Time to decipher handwriting and collect  Some works in private hands and difficult to find  May be defamation issues if people still alive  May be confidentiality issues- such as political diaries

25. Moral Rights and Posthumous Works In Canada, 50 plus life rule Need to provide express directions regarding author’s wishes regarding publication during this time Some executors may decide to destroy works rather than let them fall into the public domain after 50 years because of sensitivity concerns Must balance these actions vs. public’s benefit in previously undisclosed works

26. International Term of Rights Many countries have longer terms for both moral and economic rights Rationale to protect first two generations of descendants, given longer life spans of people Life plus 70-E.U., U.S., Australia, Israel, Brazil Mexico- 75 years

27. International Term- Moral Rights and Posthumous Rights U.S., U.K- 70 plus France- Perpetual Posthumous-Australia 7o years, India 60 years, U.S. U.K more or less 70 years depending on transition rules and works

28. International Conflicts Regarding Duration Longer duration of term in both moral and economic rights in many countries Executors may wish to consider first publishing unpublished works in those jurisdictions rather than in Canada If work “originates” in a “life plus 70 years” jurisdiction, e.g. the U.S., estate recieves the benefit of an additional 20 years protection after death, in those jursidictions If first published in Canada, rule of shorter term applies- i.e. 50 years- even in the E.U. and U.S.

29. Reversionary Interest In Canada, copyright in an author’s work reverts to the estate 25 years after the author’s death, even if the author assigned the work to a third party for consideration, if  Author was the 1 st owner  Assignment made after June 4, 1921  Assignment made otherwise than by will

30. Reversionary Interest The so called “Dickens” provision intended to relieve against hardship suffered by the impoverished family of the deceased Repealed in U.K. Considered paternalistic today in most jurisdictions Can diminish the value of an assignment if duration short

31. Reversionary Interest Provision does not catch  Owner of work made in course of employment  Owner of work that was ordered-engraving, photo, portrait  Works made for the Crown May not apply to  Posthumous works, mechanical contrivances or plates owned by others, photos made for others, cinematographic works May catch  Gifts in contemplation of death in Quebec, intestate successions

32. Reversionary Interest Silent as to assignments resulting from provisions of a marriage contract unless provisions can be assimilated under provincial laws to a will To avert the operation of the Act,  Legal reps can assign the reversionary interest back to the original assignee, at any time during or after the 25 year period  Author can provide for assignment of reversionary interest in his or her will to the original assignee  Parties can enter assignment and royalty free licence agreement at the 25 year mark- or stipulate the reps will assign back the copyright to the assignee

33. Reversionary Interest Rights reverted to L.M. Montgomery estate in 1992 even though the copyright had been assigned to Page and then Farar Opposite can occur  Law appears to permit the Estate to sell the reversionary interest to a third party, in futuro

34. What If There Is More Than One Owner? Generally, the rule changes to life of the longest surviving author plus 50 years But estate may need directions on intention of joint authors regarding all kinds of issues, such as publication of materials, destruction of materials, each author’s percentage of copyright interest, etc.

35. Owners Who Cannot Be Located S. 77 of the Act enables the Copyright Board to issue a licence to use a published work, fixation of a performer’s performance, published sound recording or fixation of a communications signal in respect of a work in respect of which the owner cannot be located Important for the executor to be locatable Important to have lists of all works, their location, last publication, licenses, registrations( if any) Important to notify collective societies of contact information of executors

36. Valuation of Property and Tax Implications The inventory of visual artists, which has been valued at zero each year during life, must be valued at full market value upon death This can trigger considerable capital gains tax which the estate may not be able to cover Important to review this issue with tax advisors to determine if other tax rules can ease burden

37. Practical Tips When Planning 1.Identify works which attract copyright 2.Decide which assets you wish to control 3.Gather  chain of title of copyrighted works,  location of and number of known copies,  written assignments, written licenses,  registrations ( if any),  history of exhibitions of works, or publications, or recordings or communications (to establish value),  contact information for collective societies, Legal Reps

38. Practical Tips When Planning 3.bDon’t forget about your “Digital Assets” stored in memory storage, online, etc.  Include any username and passwords to online storage accounts, including Facebook, YouTube, and the like  Same for your own computer access

39. Practical Tips When Planning 4.Decide which works you wish to  destroy,  withhold publication of for reasons of privacy, confidentiality, or other sensitivity and for how long,  or otherwise control the use of 5.If you are a joint author, you may assign your interest without the permission of the other authors but you may not licence others without the consent of the other authors  Consider special instructions regarding these works

40. Practical Tips When Planning Also provide info regarding % of your interest and elaborate intention of joint authors regarding  Publication or destruction of materials  Other instructions  Location and contact information of joint authors or their estate representatives/executors

41. Practical Tips When Planning 6.If you own any Neighbouring rights, such as to the Performer’s Performance, identify same and whether there have been any royalties, any collective societies on your behalf or agents 7.Consider the moral rights in your works and whether to waive or any specific instructions you may wish to include regarding  integrity of the works, [any forbidden service or product]  attaching or removing your name,  remaining anonymous

42. Practical Tips When Planning 8.Consider whether you wish to extend the ambit of fair dealing exemption by making your works more accessible on death Flip side is to consider not permitting the publication or use of your works 9.Obtain tax advice regarding impact of visual artworks inventory on estate  Consider whether you can and wish to enable the executors to use the reversionary interest mechanism to assign or license the works to trigger income for the estate for the last 25 years of copyright

43. Practical Tips When Planning 10.Consider whether any works will be subject to a reversionary interest and whether to  Direct your executors to exercise the attendant rights  Direct your executors to avert the Act and enable the original assignee to enjoy copyright in the works during the last 25 years of copyright protection  Include provisions in your will which will bequeath the copyright in certain works so that S. 14 of the Act does not apply

44. Practical Tips When Planning 11.In your will,  address the issue of who will be the beneficiaries of your assets, including those which enjoy copyright  Who will be the executors of your overall estate  Who will be the executors of your assets which attract copyright  Who, if anyone, would you prefer to be appointed as the executor of your copyrighted works from the second, third or fourth generations

45. Practical Tips When Planning 12.Consider providing instructions to your executors and to any corporations who may own your works and enjoy moral rights in them after your demise, regarding your intentions- even if the latter may ignore them 13.Don’t forget to address your wishes regarding publication of posthumous works

46. Practical Tips When Planning 14.Reflect on your best and worst case scenarios and enable your executors to act in the best interests of the beneficiaries and in a manner which reflects your intentions