Archived - Saskatchewan Archives Board

2009 Copyright Consultation Submission
From: Saskatchewan Archives Board
Date: August 28, 2009

The Saskatchewan Archives Board is pleased to participate in the 2009 copyright consultations; we welcome this opportunity to provide input.

The mandate of the Saskatchewan Archives is as follows: "To select, acquire, preserve, arrange and describe, make accessible and encourage the use of documentary records in all media, from official and private sources, bearing on all aspects of the history of Saskatchewan, and to facilitate the management of the records of government institutions." It is in dealing with issues pertaining to access to archival collections and the use of documentary resources that we have been confronted with obstacles inherent with current copyright legislation.

The Saskatchewan Archives Board is in agreement with, and fully supports the recommendations found in the Canadian Council of Archives (CCA) submission to the federal government copyright consultations.

The CCA submission, which states that Archival institution's key objective in copyright reform is to ensure that archives are able to meet the expanding information needs of present and future users while respecting the rights of creators. Furthermore, to achieve this key objective, will require the addition of a new provision to Copyright Act permitting archives to make their holdings accessible to the public using digital technology. Therefore the Copyright Act should be amended to include a technologically neutral access right to archival holdings, permitting archives to make their holdings accessible to the public using digital technology including the Internet.

In Saskatchewan this would allow the Saskatchewan Archives Board to enhance our services to the public by providing archival materials in digital formats both through traditional methods and via the Internet.

The three most problematic areas with respect to current copyright legislation are related to photographs, crown copyright, and the exemption for Libraries, Archives and Museums.

Copyright and Photography

Without exception the biggest copyright issues at the Saskatchewan Archives Board revolves around the use of photographs. It is the one medium that researchers want to copy and reproduce in websites, publications, presentations, etc.

Under the current copyright law, photographs have a different term of copyright protection depending on who is the author of the photograph. If the author is a corporation, the term is 50 years from creation. If the author is the photographer the term is the life of the photographer plus 50 years. The most problematic aspect of applying the current copyright legislation (regardless of the material) is that Archives Reference Staff typically do not know who owns the copyright to photographs in our holdings. Again this problem is most obvious with photographs because we may not know who owned the photograph, who took the picture, or sometimes even when the photo was taken (making it nearly impossible to determine copyright). This has resulted in staff functioning around the "pre-1948 public domain" rule, which means that rather than trying to work out and deal with the problems around copyright, more often than not, researchers will find a pre-1948 photograph to use in their research because they do not want the difficulties associated with trying to find the copyright holder for a later image. The inability to provide copyright information has meant that many wonderful post-1948 images are languishing in Archives and cannot be used by researchers.

The Saskatchewan Archives Board advocates for a fixed term of copyright protection for photographs. The term of fifty years from the creation that was used in the copyright law previously is preferable from an archival perspective. A fixed term makes it easier to determine the term of protection because the only information needed to make the determination is the date the photograph was created. As already stated, it is usually impossible to determine the creator of many photographs held in archival collections.

Crown Copyright

Archival holdings include many records that are currently covered by Crown copyright. The Copyright Act provides that any work which is prepared or published by the Crown is protected until it is published and for an additional 50 years after publication. There are two issues of concern to archivists regarding Crown copyright: whether Crown material should continue to be protected by copyright and whether the existing perpetual copyright in unpublished Crown copyright material should be eliminated.

With regard to the first issue, the Saskatchewan Archives Board supports the CCA submission that the federal government should undertake a thorough review of the continued existence of Crown copyright in Canada.

The Saskatchewan Archives Board has in its collection many of unpublished government records and the copyright in these records belongs to the Crown in perpetuity. This presents a particular problem when researchers want to use unpublished government photographs, textual records, maps, etc. The issue of whether the existing perpetual copyright in unpublished Crown copyright material should be eliminated is a relevant one to the SAB. Crown works that are never published are protected by copyright in perpetuity. In 1997 a similar rule for non-Crown published works was repealed. The rule was replaced by a new rule that provides the same term of copyright protection whether a work is published or not. Unpublished works protected by Crown copyright are the only works that remain protected by copyright in perpetuity unless they are published.

The Saskatchewan Archives Board believes that there is no justification for perpetual copyright protection for unpublished Crown copyright material and The Copyright Act should be amended to eliminate perpetual copyright in unpublished works protected by Crown copyright.

Libraries, Archives and Museums (LAM) Exception and Fair Dealing

Any discussion around copyright reform should include the need to provide exceptions for Libraries, Archives and museums (LAM) and Fair Dealing. The Saskatchewan Archives Boards uses both, the LAM exceptions and Fair Dealing on a daily basis. We inform our researchers that copies of materials are for research and private study only, and that any other use will require permission of the copyright holder. Without the rules around fair dealing and the LAM exceptions, the Saskatchewan Archives Board would be unable to provide researchers with copies of post 1948 images.

The Saskatchewan Archives Board believes that any changes to copyright legislation should include the retention of the LAM exemption and Fair Dealing provisions.

In conclusion the Saskatchewan Archives Board would like to lend its voice to other Archives that are advocating for changes to The Copyright Act. By acquiring and preserving and making accessible records , our institution plays an important role in preserving the historical resources of the province essential not just for self-knowledge but also for the protection of our rights, individually and collectively. We are therefore in agreement with the Canadian Council of Archives that we need to "seek a commitment from government to deal with the millions of works that tell the stories of our country and its people and that are hidden in archives because they cannot be reproduced or posted on archival websites for research because of copyright restrictions."