The Whimsical Muse

01 - The Issue of Copyright

I thought it would be best to address this issue first as it directly affects the greater majority of the writers' I have come to know through different sites and forums.

I started researching into the updated changes a few months ago when I received a message from Google Staff regarding certain settings on my blog. As we all know the European Union (EU) has changed many of its' policies regarding internet content, copyrights being a major issue.

Many fanfiction writers' rely on essentially three things. First is the misnomer that posting a disclaimer, no matter how well written will protect them from copyright infringement. The sad truth is that this has never really been true, it just makes the writer feel better. This is primarily because there is no harm intended by anyone.

Let me elaborate somewhat here. The truth about copyright and how it affects fanfiction writers explained in five simple and straightforward points:

- Unless you have been granted direct permission from the original copyright owner, any creation of derivative works is illegal.

- It is not up to the fanfiction writer to determine whether their work is protected under Fair Use; arbitration makes this determination.

- Fair Use is circumstantial at best, it is not a right. It is a defense argument in legal proceedings, with no guarantees provided for violators.

- Attribution provides no protection against copyright violation, it is still required.

- Regardless of the disclaimers provided for the purpose of respecting the rights of the actual copyright owner, derivative works are not protected.

In nutshell, unless the writer has explicit permission from the original copyright owner, any work published that is a derivative of their work is in direct violation of copyright law.

The second thing different fanfiction writers' have pointed out is in regards to the concept of Public Domain. The latest revision of the CTEA, Canada Comprehensive Economic and Trade Agreement, more commonly known and referred to as the EU or the European Union, extends the time frame of Public Domain from 75 years to 95 years.

Speaking strictly in terms of the works of J.R.R. Tolkien as that is my specific area of fanfiction, the copyrights associated with The Hobbit and The Lord of The Rings Trilogy will not expire until the year 2088. The copyrights to the works of J.R.R. Tolkien were transferred to the proprietary holdings of The Tolkien Estate and are therefore subject to potential extension.

It is imperative to note as well there are additional copyrights that need to be considered, specifically those that fall under "previously-licensed adaptations" which include films. This means that all of Peter Jackson's movies are also protected under appropriate copyright laws and have the potential of lasting well beyond the year 3000 depending on how they were originally written and whether they are (or will be) transferred to a proprietary estate.

Although it is my preferred area of fanfiction writing, the Tolkien Fandom is not the largest, that title is reserved for Star Trek and its subsidiaries. I am not as current on the copyright status of the works of Gene Roddenberry, however his date of death is October 24, 1991. Provided his heirs did not take the same steps to preserve the copyrights as did Christopher John Reuel Tolkien following the death of his father.

The third thing that various fanfiction authors continue to point out is that they are not profiting from anything they are writing. Financial gain or the lack thereof is not relevant when it comes to fanfiction.

As fanfiction continues to grow, more and more professional authors also grow concerned. No in terms of others profiting financially from works derived from their original work, but the overall commercialization received by fanfiction as a whole. There are numerous authors who do pay attention to fanfiction, having little to no problem with it as long as there is no financial gain from the derivative work. It should be noted here that both J.K. Rowling and the Tolkien Estate are among those who regard fanfiction in varying degrees of favorability as long as there is no financial gain.