How Can Rights Be Exploited?

AuthorLesley Ellen Harris
ProfessionLawyer, author, and educator
Pages195-212
195
CHAPTER 11
How Can Rights Be
Exploited?
I skate to where the puck is going to be, not where it has been.
—Wayne Gretzky
How the Copyright Act Works
One of the main purposes of copyright law is to confer rights upon
creators, which they may then exchange for money. This is how the
Copyright Act works. Take the example of the author of a book. The
author negotiates with a publisher to publish the book. In exchange for
the right to publish the book, the publisher generally pays the author
royalties, which are a percentage of the selling price of the book. If the
author then sells the rights to make a  lm adaptation of the book, the
purchaser of those rights pays the author for their acquisition. The same
is true if the author authorizes the translation of the book, and so on.
The same scenario applies with respect to all works protected by the
Copyright Act and all rights exploitable by their owners.
Now that you know the types of materials protected by copyright
law, and you know the sort of rights that belong to copyright owners,
you must learn how, as a creator and/or owner, you can exploit these
rights and bene t from that exploitation, and how as a consumer of
copyright materials, you can obtain the required access to copyright
materials.
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196 How Can Rights Be Exploited?
If you are involved in exploiting rights or obtaining permission to
use rights, you must understand certain fundamental concepts about
the nature of the rights granted by the Copyright Act and the type of
exploitation permitted by the law.
Rights Are “Distinct” and “Exclusive”
One of the most important concepts concerning the nature of the
rights set out in the Copyright Act is that these rights are exclusive and
distinct. Exclusive means that the copyright owner has the “sole right” to
do what he or she chooses with a work. No one else may use a copy-
right-protected work without the permission of the copyright owner.
Distinct means that each r ight is separate or independent from any other
right and therefore may be dealt with separately by the copyright owner.
The concept of “distinct” allows a writer to assign the right to publish
a book to a publisher, and the r ight to make a  lm of the book to a  lm
producer, and the r ight to translate the book or publish a print book in
an electronic format to someone else.
Since a creator has the sole rights in his or her creations, even where
a publisher or  lm producer has the right to publish a print book or
make a movie of a book, that publisher or  lm producer has no subse-
quent rights, such as making a translation of the book or publishing an
e-book, without further permission of the copyright owner. In other
words, the copyright owner must consent to each and every copyright
use of a work.
Copyright Is Separate from the Physical Object
Another important concept to keep in mind is that copyright is sep-
arate from the physical object in which copyright exists. This means
that ownership of copyright does not necessarily follow the physical
embodiment of that copyright. For instance, the sale of a painting does
not necessarily entail the abandonment of copyright by the copyright
holder (or the transfer of copyright in the painting to the owner of the
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