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What Does It Mean That James Bond's In the Public Domain In Canada?

January 12, 2015 By Katharine Trendacosta

Ian Fleming's image of James Bond;

On January 1st, 2015, the works of Ian Fleming entered the public domain in a number of countries. That means that the character of James Bond is no longer copyrighted in those countries, just like Sherlock Holmes has been for a while. But it doesn't mean that it's suddenly open season on that character.

Why now?

The vast majority of nations are signatories to the Berne Convention, which sets the minimum copyright term at fifty years after the death of the author. Article 7(6) allows countries to establish longer terms, which is what the United States and European Union have done — in those countries, the base term is the life of the author plus 70 years. In the United States, it can be even longer than that. So while the Berne Convention is the international standard, Europe and the United States have effectively imposed a longer one.

However, some countries, including Canada, have stuck to the Berne Convention's 50 years after death number. This means that authors who passed away in 1964 had their works enter into the public domain when 2014 ended. So, on January 1st, Rachel Carlson, Ian Fleming, and Flannery O'Connor's works are all no longer under copyright. In Canada.

What does that mean?

Copyright grants exclusive rights to authors. Graham Reynolds, assistant professor at Faculty of Law at Allard Hall, the University of British Columbia explained to io9 what it means now that Ian Flemings books are in the public domain:

When the term of copyright expires, the exclusive rights of the copyright owner are extinguished. This means that someone can do something that would have infringed copyright if it had taken place during the term of copyright protection, without infringing copyright (like publishing multiple copies of the work for sale within Canada, or creating a movie adaptation of the work for commercial distribution within Canada).

In Canada, Section 3 of Copyright Act lists the all rights that are part of copyright. Broadly, they include publishing copies of the works and adapting them to other media.

Broadly, this means that Fleming's Bond books can be published and sold by anyone in Canada, there could be Canadian film adaptations of the novels, and people could write their own Bond stories. So long as they did these things in Canada or one of the other countries where Bond is now in the public domain. It gets trickier if you try to leave the borders of those countries.

What doesn't that mean?

Although the Berne Convention is an international treaty, copyright law is ultimately determined by domestic rules. As mentioned above, copyright terms vary across national borders. In Europe, Fleming's books have twenty more years to go before they hit the public domain. In the United States, with renewal, it can be 95 years from publication. Of course, thanks to the Internet, borders are a bit more blurred than they used to be. And it turns out that it's not quite clear if a Canadian website, accessible outside of Canada, would be acting legally. Professor David Lametti, Property and Intellectual Property Professor at McGill University told io9:

It is certainly true that one could publish a physical book. But for an online book, it might be a little bit dodgier. Other people would say no because it's accessible internationally. One might be able to sue in the United States for example. There are a number of long-arm statutes in the United States which might give a copyright owner standing to sue in Canada. So it depends on a myriad of complicated rules, laws, and international law. I wouldn't hazard a guess there, although I would like to be able to say that putting it up on a Canadian website wouldn't constitute a violation.

The other big thing to remember is that this only applies to Ian Fleming's Bond. The movies are not in the public domain, even in Canada. So, if you wrote your own Bond story and released it only in those countries where Fleming's works are in the public domain, you'd still have to be careful to only include details from the books and not the movies. Blofeld, for example, could not have a white cat in your story. Professor Lametti went on to explain to us:

You could probably publish a parody anyway, since that's already covered under [Candian law]. But a legitimate, serious spy novel with the character James Bond could probably be written Canada [now].

But you could envisage the copyright holder of the movie suing somebody who wrote a subsequent book in Canada based on copyright infringement of the movie. And that would probably end up depending on the how the facts presented and portrayed. If there's anything unique to the movies that's not from the Fleming novels, there's certainly a strong case there.

In conclusion, James Bond is currently in a sort of limbo and it's possible we'll see suits about who owns what parts of him, and where they own them, in the coming years.

Hoagy Carmichael—Fleming's view of James Bond.

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