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A submission to the 2009 Copyright Consultation sponsored by the Government of Canada

by Mark Akrigg, founder of Project Gutenberg Canada, a website distributing free digital editions of books in the Public Domain

Executive Summary / Abstract

Canada's Public Domain is at risk, and needs the active protection of the Government of Canada. The author of the submission, Dr. Mark Akrigg, makes five major recommendations:

  1. A "Safe Harbour" provision for works more than 75 years old where the life dates of the authors are not known
  2. No extensions of copyright durations
  3. Explicit assignment to the Public Domain of those photographs that were in the Public Domain in 1997
  4. 75 year copyright for works with more than 15 authors
  5. Enhanced protection of the Public Domain

Background to this Submission

I am the founder of Project Gutenberg Canada, which was launched on Canada Day 2007, with the mission of providing free high-quality digital editions of books in the Public Domain. We give a place of honour in our collection to Canadian history and literature.

The site has been very successful, and our volunteers have now produced nearly 400 ebooks, which can be viewed at and downloaded from http://gutenberg.ca/. We offer our books at no charge, in HTML and plain Text formats. We use these open, public formats, with no digital rights management software, to ensure that our readers will never have to use proprietary software, and that these ebooks will never become obsolete. In particular, our Text versions are designed to be displayable on any computer with a display device, now or centuries from now.

Public Domain Versus Private Copyright: A Question of Balance

All original works start their life as the property of their creator, and many years later pass to the Public Domain. In the vast majority of cases, by the time these works reach the Public Domain their economic value is negligible, and the chief concern of public policy is to ensure that these works become available as part of Canada's Public Domain, so that anyone can use these works, or make them available to Canadians.

With the advent of the Internet, making works in the Public Domain available once more has become far simpler than formerly. At Project Gutenberg Canada, we have made hundreds of works available once more that have been unavailable for many years.

The commercial value of copyrights is exhausted far more quickly than most people realize. The vast majority of books go out of print shortly after their original appearance, and are never reprinted. Very long copyright periods are dangerous to Canada's cultural heritage, because many original works are in essence gone forever by the time they enter the Public Domain. They are forgotten, because they have been unavailable so long.

Recommendation 1: A "Safe Harbour" Provision for Works More Than 75 Years Old Where the Life Dates of the Authors Are Not Known

A huge defect in the copyright law of Canada and most other countries is the basing of copyright duration on the year in which the author died. The problem with this is the assumption that the date of death is known for everyone. This is very far from being the case.

As anyone will see who visits our site, looks at the catalogue, and looks at the header of one of our ebooks, we take extreme care to ensure that our ebooks are in the Public Domain. Our documentation puts many university and national libraries to shame. This documentation includes not just the main text of the book, but also any preface, illustration, or photograph included in the book.

If I have an illustration for which I have the creator's name, but whose life dates are unknown, because of current copyright law I cannot use the illustration if it is less than 140 years old. I make the reasonable assumption that the creator did not create the illustration before age 20. But I am also compelled to make the completely unreasonable assumption that the creator may have lived to 110 years of age. And to this I have to add the 50 years after the presumed year of death.

Barring the Public from Using the Public Domain

At the start of the ebook we issued earlier this year of W. B. Munro's excellent book "The Seigneurs of Old Canada", I was compelled to my great regret to include the following note: "A painting "The Habitant" by [John H.] Macnaughton (fl. 1876-1899) has been omitted…it originally appeared facing page 96. The year of Macnaughton's passing is not documented. Canadian copyright law unfortunately makes no provision for orphaned works such as this which are almost certainly in the Public Domain, but for which definitive documentation of the author's lifespan cannot be found. Such works must regrettably be treated as still being under copyright."

It is not just illustrations, but entire books that are affected. I actually had to turn down an ebook from Quebec that was published around 1880. Obviously there is statistically speaking no real possibility that this ebook is still under copyright. But Canada has statutory damages for copyright infringement, so I cannot take even the slightest risk in such situations: our ebooks are free, we have no revenue, and consequently no resources for hiring lawyers or for paying damages. Statutory damages have little practical effect in discouraging infringement of private copyright. But in combination with increasingly complex rules about what is under copyright, they are stunningly effective at denying the people of Canada access to their own property: older works which are not fully documented.

The Copyright Act handles anonymous works admirably: they enter the Public Domain 75 years after their creation, or 50 years after their publication, whichever comes first.

Let me strongly suggest a similar provision for works by authors whose dates are not known. These works should enter the Public Domain 75 years after publication.

This figure of 75 years is not chosen at random. When the U.S. joined the Berne Convention, they chose date of publication + 75 years as being equivalent to Life + 50, for use during their transition period. The intent of my suggestion is not to extend the Public Domain, but to reclaim that part of the Public Domain which has been fenced off from its rightful owner, the Canadian people.

And could I strongly suggest that statutory damages be abolished outright in non-commercial settings. Certainly they should not exist for works older than 75 years where there is no evidence of wilful copyright violation. They hugely increase "copyright chill".

Sample Provision for Works Older Than 75 Years Where Authors' Life Dates Are Not Known

Earlier this year the Globe and Mail and the Dominion Institute sponsored a copyright bill forum in which participants were invited to create a model copyright bill. I proposed a number of provisions which I include in this submission. For situations where authors' life dates are not known, I proposed the following provision:

Section 6 of the Act is amended by adding the following two subsections to section 6:

Works where the year of the author's death is unknown

6.3 Except as provided in section 6.4, where an author's identity is known, but the year of the author's death is unknown, copyright in the work shall subsist for a term consisting of the remainder of the calendar year of the making or first publication of the work, and a period of seventy-five years following the end of that calendar year, but where, during that term, the year of the author's death becomes commonly known, the term provided in section 6 applies.

Works of joint authorship where the year of death of one or more of the authors is unknown

6.4 Where the year of death of all the authors of a work of joint authorship is unknown, copyright in the work shall subsist for a term consisting of the remainder of the calendar year of the making or first publication of the work, and a period of seventy-five years following the end of that calendar year

but where, during that term, the year of death of one or more (but not all) of the authors becomes commonly known, copyright shall subsist for whichever of the following terms ends later:

(a) the life of whichever of those authors dies last, the remainder of the calendar year in which that author dies, and a period of fifty years following the end of that calendar year, and

(b) the remainder of the calendar year of the making or first publication of the work, and a period of seventy-five years following the end of that calendar year.

Where, during that term, the year of death for all of the authors becomes commonly known, the term provided in section 6 applies.

Recommendation 2: No Extensions of Copyright Durations

The objective of copyright law is to encourage the creation of original works by ensuring that the original authors benefit from these works. Canada's copyright durations are more than long enough to ensure that this is the case.

It is worth noting that until very recently copyrights in the United States lasted only twenty-eight years, with a single extension of twenty-eight years being available if copyright renewal was applied for. Clearly these rules did not discourage American novelists from writing their novels, the Hollywood studios from making their films, or American musicians from creating their music.

Bill C-61 included two unfortunate extensions of copyright, one involving photographs, and the other involving audio recordings.

Copyright for Photographs

The copyright term was extended to the life of the author plus 50 years for photographs owned by corporations: currently the copyright duration is 50 years from the time the photograph was taken. But this would do nothing to encourage the creation of new photographs, and instead would damage Canada's cultural heritage by making it even harder to determine when a photograph enters the Public Domain.

By way of contrast, until 1997, all photographs entered the Public Domain fifty years after they were taken. It was easy to determine whether a photograph was in the Public Domain, and the fifty years ensured that the original author received the full financial benefit of creating the photograph. It is difficult to exaggerate how beneficial this simple and straightforward system was to the Canadian people, by ensuring that our visual heritage was not put at risk.

It is unfortunate that this system was changed, so that many photographs now have a longer copyright depending on how long the photographer lived — particularly since it is in many cases impossible to determine when the photographer died.

But at least the government can leave the current law unchanged, so that photographs owned by corporations have fifty years of copyright, still an ample length of time, and so that the copyright status of these photographs is not in doubt.

Copyright for Sound Recordings

The current copyright duration for an audio recording of (for example) a Beethoven symphony is fifty years from the date of recording. The musical composition is itself already in the Public Domain, but a recorded performance carries a separate copyright of fifty years.

Bill C-61 proposed that the copyright be not fifty years from the date of recording, but fifty years from the date of the recording's release.

This provision would encourage the hoarding of unreleased recordings. For each year a recording remained unreleased, another year would be added to its copyright! This is precisely opposite to the objective of copyright law, which is to encourage the creation and dissemination of works.

This change would also make it far more difficult to determine when a recording would enter the Public Domain. Often it is difficult to determine the release date of a recording. But it is usually not difficult to determine the life dates of at least one of the musicians. Using these life dates, it is easy to determine the latest possible date for a recording session, add fifty years, and determine a date when the recording is safely in the Public Domain.

I strongly encourage the government to leave the current copyright duration unchanged for audio recordings.

Recommendation 3: Explicit Assignment to the Public Domain of Those Photographs That Were In the Public Domain in 1997

When in 1997 copyright was extended on many photographs, no explicit provision was made for photographs that were already in the Public Domain. Legal precedent indicates that in fact these photographs continue to be part of the Public Domain, but the Copyright Act and related documents do not say this. The result of this oversight was nothing less than catastrophic: countless photographs, many of which had been in the Public Domain for decades, are not explicitly recognized by the Copyright Act as belonging to the Public Domain. I deal with the effects of this constantly. Using the 1997 rules, I have recently been attempting to confirm the Public Domain status of photographs from 1897 and 1912, without success. But these photographs were both in the Canadian Public Domain from 1948 and from 1963 respectively, and remained there for decades before the passage of the 1997 legislation.

In the Globe and Mail forum I proposed the following provision to correct this situation:

Section 10 of the Act is amended by adding the following subsection to section 10:

Photographs for which copyright had expired as of January 1, 1997

10.2 Notwithstanding any subsequent revivals of copyright, any photographs for which the copyright had expired as of January 1, 1997 are no longer under copyright as of the date of proclamation of this bill.

Recommendation 4: 75 Year Copyright for Works With More Than 15 Authors

Many works, such as encyclopedias or magazine issues, are created by a large number of joint authors. It is unreasonable that these works should remain inaccessible for more than a century simply because of the practical difficulties of determining the life dates of a very large number of contributors.

I therefore propose the following provision:

Copyright term for works with more than 15 joint authors

Section 9 of the Act is amended by adding the following subsection:

Cases of more than 15 joint authors

9.3 Where a work has more than 15 authors, copyright in the work shall subsist for a term consisting of the remainder of the calendar year of the making or first publication of the work, and a period of seventy-five years following the end of that calendar year.

Recommendation 5: Enhanced Protection of the Public Domain

Copyright holders can protect their rights in many ways. They have access to the courts, and there are various copyright associations which protect their interests.

But who protects the Public Domain? The answer, unfortunately, is no one. This is an example of market failure, which results in damage to the Public Domain, and to Canada's heritage.

I suggest that the following steps be taken:

(a) The Copyright Act be renamed the Copyright and Public Domain Act

The purpose of this to emphasize that private copyright and public copyright (the right to use the Public Domain freely) are both vitally important.

(b) Explicit recognition of the Public Domain

The preamble to the copyright update bill should include specific recognition of the role of the legislation in ensuring "the orderly passage of works to the Public Domain to form part of Canada's cultural heritage", and a statement that "full, unimpeded access to the Canadian Public Domain is a critically important cultural right which is vital to preserving Canada's cultural heritage."

(c) The creation of a Public Domain Commissioner

The Public Domain is not protected by organizations of any kind, and its critical importance is often overlooked in policy discussions and decisions. For the public good, a high-profile advocate is needed to ensure that the Public Domain is protected and promoted. The history of copyright in Canada must not be a depressing tale of increasingly oppressive legislation removing accepted rights from the Canadian people. It would be extremely helpful to have a Public Domain Commissioner with a specific mandate to act as the advocate of the Public Domain, to facilitate the access of Canadians to their cultural heritage, and to report to Parliament on the status and health of Canada's Public Domain.

**

Here at Project Gutenberg Canada it will be our pleasure to continue adding to our digital library, offered free of charge to all Canadians. We have never requested and never will request any kind of public subsidy for our mission: all that we ask is that the Government of Canada protect the Canadian Public Domain.

In closing, I would like to thank the Government of Canada, and in particular the Minister of Canadian Heritage and the Minister of Industry for sponsoring this summer's Copyright Consultations. Private copyright exists to encourage the creation of works, and the Public Domain exists to encourage their preservation as part of our heritage: there is no conflict in these objectives. My hope is that this summer's consultations will assist the government in creating a bill that places the larger public interest above all other considerations.

Sincerely yours,

Dr. Mark Akrigg
Founder, Project Gutenberg Canada