How Can Rights Be Exploited?

• Author: Lesley Ellen Harris
• Profession: Lawyer, author, and educator
• Pages: 195-212

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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