The July/August issue of the Literary Review of Canada features an extensive overview of the controversies — legal and artistic — surrounding fanfiction in the U.S. and Canada. The article is written by copyright lawyer Grace Westcott, who is Vice Chair of the Canadian Copyright Institute, and she does a very good job of presenting the arguments on both sides of the issue. But there is one unique, Canadian wrinkle to the debate:
it’s hard to see a case for fan fiction as fair dealing under Canadian
law. Besides, there are the author’s moral rights to consider. The US analysis
of fan fiction makes barely a passing nod to moral rights. No wonder: in the US
the notion of moral rights is fairly slight. (And a media corporation cannot
have moral rights; it’s strictly a personal right.) But in Canada, and much of
the rest of the world, an individual author has the moral right both to be
credited as the author (or to remain anonymous, if he or she chooses) and to
have the integrity of the work protected. That integrity is infringed if the
work is, to the prejudice of the honour or reputation of the author, distorted,
mutilated or otherwise modified, or associated with any product, service, cause
or institution.
Obviously, a moral right that a work not be “distorted, mutilated or
otherwise modified” poses a serious legal impediment to the fan fiction writer.
It is a significant fetter on the fan’s freedom to rework the canon without this
act being viewed as an attack on the artistic integrity of the source work and
ultimately on its author’s reputation. After all, an author may well feel that
something he or she has spent years researching and writing is a finished work,
not a literary buffet or a cultural spare parts counter for others to rummage
in. An author may object to distortions of his characters when they are
appropriated to the divergent narrative sensibilities of fan imaginations.
She concludes:
So where does all this leave fan fiction? It may be that its shadowy
status – largely tolerated, but legally vulnerable – leaves it just
where it ought to be, in a healthy state of tension between fans and
authors. Because the fact is that fan fiction has so far been able to
operate as a tolerated use, if not a fair use. Both parties have good
reasons to accommodate the concerns of the other. No one wants to crush
a fan; and fans don’t want to damage their favorite author’s livelihood
or reputation. Fan fiction, particularly under Canadian law, and in
view of authors’ moral rights, requires the author’s forbearance, and
probably deserves a degree of that. There is a danger, in this balancing game, in taking a militant stance.
What is needed is a kind of digital civility, an online code of respect
in engaging with cultural works that recognizes and addresses authors’
rights and legitimate concerns. This, together with the recognition
that fan fiction comes from basically ‘a good place’, should encourage
authors, media owners and fans to develop a code of fair practices to
define what’s fair in fandom, to allow fans to engage creatively with
the works they so sincerely admire.
