Producers organizations are unduly using an ambiguity present in the current Copyright Act, precisely the authorial status of a so-called “cinematographic work”, to claim they are the main author and creator, yet both the text and subsequent legal rulings give overwhelming support to the proposition that the screenwriter and director are co-authors of the audiovisual work.
Section 11.1 of the act defines a cinematographic work as a set of actions giving the work its “dramatic character”, providing a term of copyright, which now is the life of the author plus 70 years, only to those works where, “the arrangement or acting form or the combination of incidents represented give the work a dramatic character”.
A writer, of course, puts words on paper—the script. A director then directs the performers and conceives and arranges all of the various creative elements that will ultimately appear on screen, including the staging, camera frames and camera movements, conceiving the settings and selecting locations, determining the tone and interaction of the performers, arranging the final sequence of images in the edit, and determining the sound design and musical score.
Section 11.1, in essence, determines that the screenwriters and directors are at the core of the creative decisions. As defined in the act, the screenwriter and director are the originators and creators who provide the dramatic character to a cinematographic work, whether it is a feature film or a TV series.
The term of the copyright itself, set at the life of the author plus 70 years, constitutes further evidence that the author must be an individual and a physical person, someone who can be credited with authorship and natural ownership of moral rights, not a corporation or other legal entity. Again, contrary to producers' claims, this interpretation of the act is supported in all existing Canadian case law and in Quebec jurisprudence under the civil code, and also in everyday practices in the Canadian film and TV industry.
While it is true to say that a cinematographic work is the result of a collective vision, copyright protects the expression of ideas, not the ideas themselves. Producers are responsible for the financial and administrative facets of a production. They are defined in the current act as “makers”. While carrying out a project from concept to screen is an important responsibility, it is not creative in the artistic sense, and it does not make the producer an author. ln other words, producers aggregate the rights to later license them. This logically establishes that ownership of copyright and moral rights must belong solely to the originating author and that the author must be a physical person giving the work its original dramatic character.