And Bart, absolutely the “chill factor” is a very serious extension beyond the limits imposed by the law. As I say, the Canadian Intellectual Property Office makes it clear that in Canada plot & character are fair game, YET who’s to say Ionesco’s estate (or for someone else, Disney Corp. or whoever) won’t drum up an excuse to launch a suit in spite of this, which poor little individual creators have no resources to defend against.

I suppose the only compensating thought I can have is: what brilliant publicity would it be for ZOMBOCEROS (as I’d really like to call it if I had the courage to risk the suit) to generate a lawsuit against me. And really, what’s the financial risk? A Cease and Desist Order? Pay the value of the rights had I obtained them? (I’m reminded of Craig Walker’s decision to ignore a Stratford Festival lawyer’s letter threatening a suit if Theatre Kingston proceeded to use an image of Shakespeare owned by the Festival to publicize a Shakespearean production, on the basis that the attention gained would be much better for the company & production than any financial compensation they might be forced to pay.) But the fear of it being much more than that—hell, the fear that I’d actually have to resort to hiring lawyers alone, or that I’d have to pay Ionesco’s estate’s legal fees—quickly dismisses that fanciful thought.

As a copyright lawyer myself, I would argue that Shakespeare is likely in the clear for all of his plays because, while the ideas, basic plots and facts may have been borrowed, the actual text of the plays themselves is original. It’s the expression of the ideas that is protected, not the ideas themselves.

That being said, if DanishCorp, Inc., the Elizabethan multinational corporation (makers of fine products such as Hamlet™ brand grave digging services and the ever-popular Ophelia™ brand swimsuit) had decided to take a run at poor Will with a massive lawsuit alleging defamation, copyright infringement and/or trademark infringement and demanding an injunction against the play, huge amounts of damages and all of his profits, who could blame him for knuckling under? You may win in the end, but who wants to pay the legal bills in the meantime?

As you say, the problem now is what sort of chilling effect is this uncertainty having on artists and writers? What works aren’t being created or published because the author is afraid of getting sued?

At the bottom line, what I find fascinating about your dilemma is that the very nature of it suppresses your expression. You’re caught up in questions of what is or is not allowed — questions which you and I cannot even answer — and those questions are now in the way of you going ahead and improving upon Ionesco with zombies. Who wins?

I think your premise of applying CCA principles to evaluate legality of Shakespeare’s use of source material may be missing a significant point:

I’ve always relied on public domain source material to ensure adaptations I create steer well clear of copyright infringement. Just in the last month, I’ve started contemplating another Shakespearean-style rip-off—er, make that “inspired by”—adaptation using clearly copyrighted material. Specifically, I want to create a new work that makes the connection between Ionesco’s Rhinoceros and the current Zombie craze. As a result, I’ve been digging around on what constitutes sufficient transformation of a source work to be clear of copyright restrictions, as I don’t want to be legally or financially under the thumb of Ionesco’s estate.

The Canadian Intellectual Property Office claims on their website that “plots or characters” are specifically NOT subject to copyright (http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr00506.html#no4). Reviewing the CCA itself, I see that restrictions regarding transformations of original work are focused on protecting against:
-translations
-performances
-change a non-dramatic work into a dramatic work or vice versa
-in the one instance of “adaptation” in reference to protected uses, 3 (e) states “adapt and publicly present the work as a cinematographic work”

As far as I can make out, the CCA does NOT extend copyright protection to creating a new work in the same form (e.g. a new play based on an existing one) which uses key elements such as plot, characters, etc. but which is clearly not the same work (whereas if you tried to change an existing work while passing it off as the same you could be violating the moral rights of the author to have the integrity of his work preserved EVEN IF you have copyright permission to use the work or hell even OWN the copyright, as per court case re the Christmas red ribbons the Eaton’s Centre in Toronto put on its famous sculpture of Canada geese). I’m still a little dubious where the line lies: surely extensive use of the same dialogue would make the “new” work not be “new”, but signs seem to point to consistently new dialogue sufficing to make the difference.

By this standard, I THINK most of Shakespeare’s would be safe in Canada by dint of being sufficiently different from the, yes, would-have-been-copyrighted-by-Canadian-Law source material he used.

By contrast, the U.S. 1976 revision to their Copyright Act extends a very broad coverage for copyright holders to control the right to create “derivative works”. While this covers much of the same “translation/transformation to a new medium” as the CCA, the “derivative work” definition extends much broader rights:

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, OR ANY OTHER FORM IN WHICH A WORK MAY BE RECAST, TRANSFORMED OR ADAPTED. A work consisting of editorial revisions, annotations, elaborations, OR OTHER MODIFICATIONS WHICH, AS A WHOLE, REPRESENT AN ORIGINAL WORK OF AUTHORSHIP, is a “derivative work”.

The CCA does not contain the word “derivative” (it uses “derive” once in reference to the source of a photograph [as in, a negative or a plate]), and as noted only once uses “adapt” in reference to creating a movie from an existing work in another medium.

It seems, from my limited research so far, that characters and plot are understood to be encompassed by this broad American definition of “derivative work”. Shakespeare would be sore out of luck there. If he were making comedies based on tragedies, he could lean on U.S. “fair use” allowances for parodies. I see no such equivalent in Canadian legislation, presumably because parodies are in Canada sufficiently different, original works that they are already inherently free of copyright protections from the sources they parody, as are other new works based on original sources under copyright.

All this is IF my reading is right. Big IF.

And IF my reading is right, the CCA versus the American legislation represents a HUGE difference in the two countries’ laws, and the freedom accorded artists like me who would like to follow Shakespeare’s lead in drawing inspiration from the cultural sources around them to go about creating new works and thus adding to our cultural richness.

Then there’s other issues like whether Canada’s obligations from having signed on to international copyright conventions like Berne in fact extend greater protection than the CCA grants. Or whether other related rights legislation might cover instances not covered in the CCA (e.g. in the U.S. there are lawsuits via Unfair Competition law to preclude profiting from the use of material derived from someone else’s work, even if it is not a case of copyright infringement). So I have a fair bit more work to do before I can say that I’m safe to create my Rhinoceros-inspired new Zombie musical (oh yes, it’s to be a musical; and I’d like to go beyond Creative Commons licencing to get specific commercial use permissions from Jonathan Coulton for “Re: Your Brains” and maybe other songs, because I’m willing to deal with copyright permission issues with Jonathan Coulton but not with f(*&king Ionesco’s estate).

PLEASE PLEASE PLEASE anyone who can help to confirm, deny or refine my understanding of the nuances of copyright protection as regards “derivative” works, adaptations and “inspired by”-s, give me a shout before I get sued by Ionesco’s estate! david@ncf.ca

On top of that, theatre is collaborative. And on top of that, although I’m interested in discussions of who wrote Shakespeare, I find most of them moot: in the end, we have the plays. And it’s the work that counts.

In terms of the modern discussion of who copyright “serves”, I don’t think it’s quite so open: one doesn’t need to look for to see who’s most interested in making copyright laws more strict. It’s almost universally NOT the artists themselves.

I like that fact that you pick Shakespeare for this discussion because the copyright concerns you raise neatly dovetail with the perennial question of whether or not he actually wrote all the plays himself.

The uniquely modern obsession with authorship is, I think, rooted in the historical development of copyright law.

For me, it’s an open question whether or not these laws were created to serve the needs of the artist or the people and companies who took control of the art.

Did you catch Eternal Hydra at Magnetic North? It deals with these kinds of issues with incredible finesse and intelligence.

I’m certainly not arguing that all copyright is evil; I think we absolutely need to protect creators. Balance of ownership and “the greater good” is key, and tricky, and for my money I’d say that Creative Commons licensing comes closest to the mark right now.

That said, the notion of Holinshed as “fact” is certainly not solid; much of it was based on aural and folk history — it was based largely on [tall] tales by Geoffrey of Monmouth — and even within Shakespeare’s lifetime massive tracts of the work were discredited as inaccurate or fictional, and other more rigorous accounts of history were created.

Copyright law (of sorts) did exist in Shakespeare’s day, but ownership at that time was based on who printed the work first. It was for this reason, among others, that so many playwrights at that time never bothered putting their name on their work. They were paid up front by the theatre to write a piece, and then to have it performed; and then if a printing house got hold of it and printed copies of the script — with or without the author’s assistance or permission — the printing house received all of the proceeds from the sale of those copies. In preparing for my work in A Christmas Carol, I learned that even in 1843 English copyright didn’t extend to the theatre — so when Dickens published his novella in November of 1842, stage adaptations were created almost immediately; three months later there were three different versions in local theatres, and one year later there were an additional five. Dickens had no right to any of them.

With the Snow White example, I was VERY clumsily trying to get at notions of transformative use, which are trickier to define and dealt with much more comprehensively in work such as Brett Gaylor’s RIP: A Remix Manifesto, which I’d recommend to almost anyone. Your points on Disney are well-taken; I just can’t resist taking pot shots at the Mouse House because I know YOU’LL notice, DK. And there is no denying the fact that Disney’s lawyers have had a great deal of input into the current state of American copyright law, for better or for worse.

All that said, we agree on the bottom line, which is that we all win when creators get to decide for themselves how they’d like their work used (today’s legislation automatically decides for me as soon as I create my work, unless I explicitly state otherwise). I’d love to advocate for creating work and setting it free right away, as fine modern artists like Cory Doctorow and Nine Inch nails have been doing — with tremendous success.