Die Another Eh: What Does It Mean Now That James Bond Is In The Public Domain In Canada?

from the but-what-does-that-mean dept

As of this year, James Bond is in the public domain in Canada. Since the term of copyright in Canada is the life of the author plus fifty years, and Ian Fleming died in 1964, the copyrights in all of his James Bond novels and short stories expired on January 1st. That means that Canadians can freely make copies of the Bond novels, make their own film versions of them, and write stories featuring James Bond in his role as a member of the British Secret Service. (It doesn’t mean they can distribute copies of the movies at will, though?those copyrights exist separately from those of the books.)

US fans of the series shouldn’t start casting their home adaptations of Thunderball just yet, though., Since copyright terms in the US were retroactively extended in 1998, we have to wait another 20 years before Bond hits the public domain in the US.

But Bond is nothing if not a world traveler, and Canada is just a step away. What happens if Canadian reprints of a Fleming novel make their way here?

The New Books Can Come In

The first sale doctrine (embodied in the US Copyright Act here) says that if a copy of a work is lawfully made, someone who owns that copy can legally import it into the United States. So according to that law (and bolstered by a 2012 Supreme Court decision), someone should be able to fill a bag with paperback Bond novels in Toronto and bring them back into the US for sale. (Note: this may not stop that someone from getting sued, but they should win under the current law. Eventually.) The margins on this sort of activity seem like they would be low enough that I doubt that US branches of book publishers are too worried about declining sales of the novels.

The same should be true of audiobook versions?with one odd caveat: if I try to play the audiobook to a public audience, or if I arrange a public reading of one of the stories, I’d be infringing the copyrights of the works. That’s because while the law lets me distribute copies that I own, I still can’t make public performances of the copyrighted works. We’ll get into this more as we talk about film adaptations.

The New Films are more Complicated

But enough about the books; what about film? Bond might have his origins in text, but he’s more famous as a screen character. What if a Canadian made a new film based upon the Fleming novels? So long as they take nothing that came from the existing movies, but did a novel-based reboot of sorts, they’d be in the clear in Canada. But could copies of those new Canadian Bond movies come into the US?

While making an adaptation of a copyrighted work would be an infringement, someone merely importing a copy of that adaptation isn’t the one making the adaptation. Their copy is already made.

Let’s assume that all of the adapting is being done in Canada. Since Bond is in the public domain there, the adaptation is lawfully made. Now, let’s assume that the new filmmakers produce an authorized DVD?that’s lawfully made too. So if I buy a few copies of that across the border and come back with them, I should be in the clear just as much as with the paperbacks.

Showing a Boring Film Would be A Problem

But what happens when I try to arrange a public screening of one of these movies? Things get a little weird. If the “adaptation” were something as direct (and as dull) as a film of someone reading the novel aloud verbatim, I might have a problem. See, while the first sale doctrine gives the owner of a lawfully made copy the right to distribute it without permission, making a public performance of that same work is still prohibited. So even if I had a legally made Canadian copy of Dr. No, I still couldn’t read it aloud as a public performance in the US without permission. It doesn’t matter where the particular copy I’m reading from was made; the words I’m saying are the same, and still infringing.

Our boring “adaptation” of, say, Alex Trebek reading the book aloud would likely be analyzed under the same framework. In this case, the adaptation, while a new work, still embodies the old one. If I exhibited this movie, I’d likely be sued for publicly performing the original novel, not for exhibiting the movie, which would, in Canada, have its own copyright, with completely different copyright owners.

Showing an Interesting Film May Be

But movie adaptations of James Bond are not exactly known for their fidelity to the books. What if the new Canadian production of Goldfinger included only the occasional phrase from the original, or even had all of its dialogue rewritten, had scenes omitted or amended, and its setting changed?

Sure, it’s a derivative work, but remember, that’s not the question. What is at issue is whether or not you can discern a performance of the original novel inside the elements of the new movie.

To see whether someone’s “performing” the novel by exhibiting the film, you first have to ask whether or not the copied bits, taken as a whole, are protectable. Things that aren’t protectable include general ideas, or standard plot tropes, or stock characters. If, in adapting the novel into a film, I’ve removed all but these, I’m probably not infringing the original novel.

You then have to ask if the performance of the film contains those copyrightable elements in a way that is encompassed by the rights of the original novel. If the new movie still resembles the novel enough to be considered an actual adaptation, though, it seems like it might still carry within it enough of the original novel for my public screening to be considered at least a partial “public performance” of the novel, and thus infringing.

But fidelity to the original story isn’t necessarily a hallmark of the Bond oeuvre. The underrated 2008 Quantum of Solace movie bears zero relation to the Fleming short story from which it takes its title, and it’s hardly the first Bond movie to fit that pattern. What if our Canadian filmmakers make a James Bond movie, title it The Spy Who Loved Me, and make it about a plot to hack British military drones instead of a tense standoff in an Adirondack motel?

Which Bond is Best? (Or Why Character Copyright Makes No Sense)

Having removed the potential infringement from the book, we’re left with whether the mere use of the character known as “James Bond” is enough to support a copyright infringement based on public performance in the US. Showing the Canadian movie arguably is a “public performance” of the James Bond character, which is still in copyright in the US?but what does that even mean? The character isn’t a known series of words, sounds, or images; it’s in many ways more akin to an idea, and ideas in themselves are definitely not copyrightable. But the current state of the law allows characters to be separately copyrightable in their own stead.

This, for better or worse, is where a court’s more subjective sense of literary merit might have an effect on the outcome of a case. If it thinks Fleming’s characterization of Bond is flat, it might classify him as a sort of stock character of a secret agent and find that simple concept uncopyrightable. But it doesn’t take a ton of shared details to make a stock character something that the courts will recognize as copyrightable. (The fact that many different actors with different styles have played adaptations of Bond could cut both ways here: in indicating that the scope of the copyrighted Bond character is broad, or, conversely, that he’s just a flat stereotype?a stuffed tux.) The fact that our Canadian-produced James Bond shares the same name and job description as Fleming’s might be enough, in this case, to block screenings of the film in the US.

But Wait, There’s More!

Don’t worry, it gets weirder. Imagine a copy of this new Canadian Goldfinger movie is imported into the US, and then copied here, without the permission of the Canadian filmmakers. Let’s assume that the copy wasn’t made as a fair use. Can the Canadian filmmakers sue the US copier?

Actually, the answer seems to be yes. While the Canadian moviemakers might have created a work that would be infringing to exhibit in the US, since the movie takes elements from works with an active US copyright, they also will have added copyrightable expression of their own in creating the film. And while someone taking from the Fleming-created expression embodied in the movie might not be able to be sued by the Canadians (though they’d certainly be open to a suit from the Fleming rightsholders), taking from their newly added creativity opens you up to a suit from the new creators. Basically, making unauthorized copies of the unauthorized Canadian James Bond movie could get you sued by two different people.

So there you have it. James Bond is in the public domain in Canada, and that single fact throws into relief a number of open questions and absurdities in the first sale doctrine — what parts of a work can and can’t be protected by copyright, how characters can be copyrighted apart form the works in which they appear, and how infringers can be rightsholders in their own right. It’s a wealth of complexity and gray areas, in many ways in desperate need of a solution.

Clearly, that solution is to just reduce our copyright terms to match Canada’s.

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Comments on “Die Another Eh: What Does It Mean Now That James Bond Is In The Public Domain In Canada?”

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60 Comments
Anonymous Coward says:

Re: Re:

Nah US should go the way of Mexico and adapt life + 100 years and get that through in “trade agreements” before that hole is closed…

Infinite copyright would equal eternal riskless reward for the companies who would literally end up soaking the worlds riches. While the companies in Hollywood or Florida wants that, it would require quite the politician to go that route of complete insanity.

tqk (profile) says:

Re: Yeah, but

If they do make Canadian Bond films the Queen can still take it out on them, since she is still their Monarch.

Frankly, watching how the USA fawns over the British royalty (it’s like you consider them the British wing of Hollywood stardom), I suspect she’s still considered the US’ monarch. You just don’t like to admit it.

That One Guy (profile) says:

Re: Re: Re:2 Not one monarch, but many

Oh but they most certainly are real problems. After all, if most of the population is busy scratching their voyeurism/poornography* itch, they aren’t going to be able, or interested, in paying attention to things that actually matter, allowing would-be-tyrants and dictators pretty much free reign to do as they wish.

*Poornography: Modern day reality tv. ‘Oh, look at how the poor people act/live, isn’t that so funny/cute/entertaining?’

Anonymous Coward says:

put simply, copyright is ridiculous in it’s length and variation, being used to line pockets of those who had nothing whatsoever to do with the original items or the originator. being ‘a family member’ and therefore allowed to carry on milking the copyright payments and perhaps being able to extend the terms further is nothing short of outrageous and need stomping out!! no copyright should be longer than 5 years, regardless of what it’s on or who the originator was!

Roger Strong (profile) says:

Still some chilling effects in Canada

In theory, as a Canadian, I can now post the text of James Bond stories on my Canadian-hosted web site.

What if someone else were to link to the stories on a US site? Say, this forum?

What if I post a reading of a James Bond story to YouTube?

What if I’m using Godaddy, an American registrar, despite hosting in Canada and using a Canadian domain name? (Copyright maximalists have been going after registrars lately.)

I’m pretty sure that in each case, even just the first one, I’d be facing legal threats and takedown notices.

Roger Strong (profile) says:

(It doesn’t mean they can distribute copies of the movies at will, though—those copyrights exist separately from those of the books.)

Plot twist: A James Bond actor from one of the movies – Timothy Dalton, Pierce Brosnan or any of the others – comes to Canada to film a new James Bond film. Or appears explicitly as James Bond in Canadian TV commercials. Based on the original James Bond from the books, of course.

Anonymous Coward says:

Quantum of Solace was not underrated, the story was terribly told swill and the movie was filled with the ridiculous and suspension of disbelief shredding action sequences.

Here’s a drinking game for you: Watch Quantum of Solace and every time the camera cuts to a different perspective or new shot take a swig of beer.

I don’t care if you’re Andre the Giant, you’ll be passed out cold within ten minutes. The movie unfolds as if the editor had just taken enough speed to kill an elephant.

PaulT (profile) says:

Re: Re:

I actually liked QoS, though it was inferior to Casino Royale. But, I’ll never accept the idea that Moonraker was a good film.

In other words – get ready for a shock – different people have different opinions! Not only that, they’re all as valid as each other if they’re honestly held! In fact people may like QoS despite – or even because of – the things you find objectionable.

I hope that hasn’t shattered your fragile world view.

Anonymous Coward says:

Re: Re: Re:

In other words – get ready for a shock – different people have different opinions! Not only that, they’re all as valid as each other if they’re honestly held! In fact people may like QoS despite – or even because of – the things you find objectionable.

Then why are you responding to my opinion (which was in response to the author of this article’s opinion) if it’s valid? And then insulting me?

Have you really nothing better to do?

PaulT (profile) says:

Re: Re: Re: Re:

“Then why are you responding to my opinion”

Why shouldn’t I respond to something stated in an open public forum? I’m a movie fan and I like to discuss movies, if the discussion has substance (i.e. not the “this sucks” vs “greatest film ever” that infects every iMDB message board).

“And then insulting me?”

I didn’t mean to insult, I just don’t like opinions presented without substance. Yeah, you don’t like QoS. Was it just the editing style? Is this something you don’t like in the Bond franchise specifically or was it a style choice you dislike in the other movies that use it? Was it just the staging of that opening chase sequence you really disliked, otherwise what made it “ridiculous” that doesn’t apply to other chase sequences? And so on…

Now, as I stated – Moonraker? A poorly handled concept that takes too long to get to what’s supposed to be its central hook, a long string of bad slapstick jokes, culminating in a mockery of one of the franchise’s greatest villains (Jaws’ love interest subplot), etc. You want to talk about ridiculous openings, how about that skydiving sequence and its end shot? I can talk for hours about what I dislike, and why, but I’m interested to hear the opposing point of view.

“Have you really nothing better to do?”

At that time in the morning, reading Techdirt while waiting for updates to complete before my work day started for real? No, I actually didn’t.

Is there something wrong with that?

Anonymous Coward says:

Re: Re: Re:2 Re:

“I just don’t like opinions presented without substance”
” But, I’ll never accept the idea that Moonraker was a good film.”

Come on man, one the one hand you don’t like opinions without substance, but on the other you’ll never accept the idea the Moonraker was a good film?

I’m not arguing with you just for the sake of arguing here: people post unsupported opinions on things all the time as you did about Moonraker and I did with QoS. You did what you were accusing me of right out of the gate. Hell, i even gave more of a reasoning for my dislike of QoS than you did of Moonraker.

“I didn’t mean to insult, I just don’t like opinions presented without substance. Yeah, you don’t like QoS. Was it just the editing style? Is this something you don’t like in the Bond franchise specifically or was it a style choice you dislike in the other movies that use it? Was it just the staging of that opening chase sequence you really disliked, otherwise what made it “ridiculous” that doesn’t apply to other chase sequences? “

The editing and action sequences killed it for me, even the conversations are a staccato of cut-cut-cut-cut-cut. If the camera stays on one shot for more than six seconds in the entire movie i would be very surprised. But beyond that i found the story to be a cobbled together mess. I haven’t seen it since 2008, and honestly i’m not going to watch it again to give you specifics, but after the grand slam of Casino Royale, QoS seemed like it had the production and story values of a sitcom.

And the plane sequence at the end, hahaha.

Anonymous Coward says:

Re: Re: Re:4 Re:

Casino Royale has a 95% fresh rating on rotten tomatoes. It’s one of the few Bond films that rises above and is worth discussing on esthetic grounds. Given that, i’d argue its direct sequel is worthy of the same discussion, if only to explore how abysmal it was in living up to the standard set by its predecessor.

PaulT (profile) says:

Re: Re: Re:3 Re:

“on the other you’ll never accept the idea the Moonraker was a good film?”

Never’s too strong a word perhaps, but I’ve never heard a good argument as to why I should. I’m open minded, though, should the right evidence come my way. I just think it would take an extremely strong argument to get the to overlook double taking pigeons and one of the great villains of modern cinema being a lovesick sort-of hero.

“The editing and action sequences killed it for me, even the conversations are a staccato of cut-cut-cut-cut-cut”

Fair enough, so the editing style is what kills it for you. I can appreciate that, that’s one of the things that can kill a film stone dead, and it’s a little disappointing that they went that way in a franchise known for its long shots on real stuntmen. I can handle that style, and I’ll take it a million times over the badly CGIed avalanche sequence in Die Another Day, for example.

But, hey, I understand your argument now, even if I don’t personally agree.

John Fenderson (profile) says:

Re: Re: Re:

“I’ll never accept the idea that Moonraker was a good film.”

Although I’m a HUGE fan of the Bond movies, Moonraker and Octopussy tie in my mind for the worst Bond movies made (and make my top 50 worst movies of all time list). I honestly don’t understand how the word “good” could be used to describe it either.

However, we disagree about QoS. It was very disappointing. I thought it was an OK movie at best. The more recent run of Bond movies have been pretty spotty in terms of quality — but then, in all fairness, that’s true of the entire franchise from the start.

PaulT (profile) says:

Re: Re: Re: Re:

“It was very disappointing.”

Oh, I can agree to that. Casino Royale was such a revelation, it was hard to live up to and QoS didn’t do that. But a bad film? I honestly don’t see it. Certainly not the best Bond by a long shot, but I do enjoy it.

“Moonraker and Octopussy tie in my mind for the worst Bond movies made”

Octopussy was the first Bond I ever saw at the cinema, so I always have a soft spot for that and A View To A Kill despite their obvious flaws. Maybe I was just conditioned from a young age to enjoy bad Bond movies, yet even for me Moonraker is just too terrible?

PaulT (profile) says:

Re: Re:

” The last time someone found a way to skirt copyright law on James Bond movies, we ended up with a couple movies starring Timothy Dalton”

Erm, what? You’re saying that The Living Daylights and Licence To Kill were not legally prodcued? Or, are you saying that they did something wrong by not titling the movies after one of Fleming’s books, even though some of the “adaptations” of those novels were mostly new material anyway. This all despite the fact (AFAIK) that copyright to all the books except Casino Royale and Thunderball were held by Eon and the Broccollis? What “skirting?”.

Please explain, I’m honestly intrigued. Also, if the non-adaptation of a novel is your issue, why do you have a problem with Dalton and not the Brosnan movies?

tqk (profile) says:

Re: These Foreigners Always Want To Steal Our All-American Heroes

YOU GUYES LOST THE WAR OF INDEPENDENDENCE!!!

Yeah, and the French lost on the Plains of Abraham. We’re still dealing with that, not to mention that British lineage crap. Take a number.

Meanwhile on Al Jazeera, people are asking Arabs why it’s bad that IS/ISIS/ISIL snipers were killed by returned fire by Canadian special forces (“Rangers”?). Should Canucks be in Syria vs. IS, or not? Everyone seems to be pushing the “Assad’s not that bad” line now that everyone’s seen IS. I thought we were out to end tyranny and free Syrians. Can’t we do that and kill IS?

Inquiring minds want to know.

aethercowboy (profile) says:

Character Copyrights

I’ve always thought “character copyrights” made absolutely no sense, and have read through as many of the legal opinions on the matter as I could find, all of which defending such just seem like legal hand-waving. However, what it amounts to in my non-lawyer mind is a character is not a fixed and tangible work. In fact, all good characters (ones that are “protected” under the opinions mentioned above) are dynamic, developing changes over their literary lifespan. Further, no character is actually tangible.

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