Archived - City of Vancouver Archives

The City of Vancouver Archives is part of the government of the City of Vancouver, British Columbia. Founded in 1933, it is the oldest municipal archives in Canada. Included in our holdings are over 2,100 linear metres of textual records, 1.5 million photographs, 36,000 maps, plans and architectural drawings, and tens of thousands of digital records.

The Archives' role within the community is to acquire and provide access to the records of the City government and its various boards and agencies, as well as records from private individuals, associations, businesses and other organizations within the community. These records constitute the documentary heritage through which the citizens of Vancouver can hold their government accountable and access their community's past.

Virtually every item within the Archives' holdings is considered a work within the meaning of the Copyright Act. Any change to the Copyright Act has the potential to affect how we manage and preserve our holdings, and how we provide services to our patrons.

One of the core functions of the Archives is to keep and preserve the items entrusted to it so that future generations will be able to access and use its holdings. It is essential that any legislation not limit the Archives' ability to take actions deemed necessary for the maintenance, preservation and conservation of those holdings.

The other core function of the Archives is to provide broad access to the Archives' holdings to researchers. The Archives' hope is that any changes to the legislation take into consideration activities the Archives must undertake in order to be able to provide access to the entirety of its holdings, including works that may be under copyright.

The Archives supports the recommendations in the submission made by the Canadian Council of Archives (CCA) to the 2009 Copyright Consultations. In addition to the CCA's recommendations, we would like to see the following issues addressed in any new legislation:

No Infringement for Conservation or Preservation Activities
Actions deemed necessary to the conservation or preservation of a work, or the management of holdings should not be infringing.

Archives frequently need to undertake actions that could be considered infringing in order to preserve works, conserve a damaged work, and otherwise manage their holdings. This is particularly relevant in the case of digital works, where the inherent fragility of these works makes it regularly necessary to create back-up copies of works, to migrate works to new physical media because of hardware obsolescence, and to migrate works to new logical formats because of software obsolescence in order to prevent them from being lost or becoming inaccessible. If a work is protected by encryption or other technical protection measures (TPMs) it may be necessary to circumvent these measures in order to be able to back-up, conserve or preserve a work. Circumvention of TPMs for these purposes should not be an infringement. Finally, it is not only archives and cultural institutions that need to undertake these actions, but all persons who own these types of works. Because of this, this exception should not be limited to only archives, libraries and museums — it should be a general exception.

Promotion of Digital Access
The Copyright Act should be amended to permit archives and similar institutions to provide access to copyrighted works in their holdings using the internet and other means of electronic communications.

One of the defining attributes of archives is that their holdings are largely unique - there are no alternative sources through which they can be accessed. It is in the public interest that archival institutions be able to provide broad access to the items in their holdings. Unfortunately, constraints such the physical location of an archives and its hours of operation limit access to the few people who have both the time and means to physically visit the archives. It is unreasonable in a democratic society to deny access to archives because of these constraints when technology exists that provide access to archives regardless of one's means. We believe that the public has a increasing expectation to be able to access the records of their government and their documentary heritage online, and that this is a reasonable and justified expectation.

Limitation of Liability for Non-Commercial Infringement
Archives and related cultural institutions should be limited in their liability for any infringement, particularly non-commercial infringement, or innocent infringement where the institution is acting in good faith. In cases where the institution is acting in good faith, any relief should be limited to an injunction to cease the infringing activity.

Archives often have works in their holdings for which the copyright status is unknown or unknowable. The Copyright Act as currently written restricts archives' ability to provide broad access to such works through tools such as the internet for fear of infringement. In the majority of cases the actual harm caused by an infringement is negligible, but the potential liability is not proportional to the likelihood of harm. This creates a legal barrier to access that is not reflective of a proper balance between the rights of creators and the rights of the public at large.

Changes to What Constitutes Fair Dealing
The Archives is in favour of any changes to the Copyright Act that would simplify the definition of "fair dealing" and expand the types of activities that fall under the fair dealing exemption.

The Archives' mission is to preserve records and make those records accessible to the public. It is not its role to decide what is or is not a valid use of the materials in its holdings. Rather than exhaustively enumerating allowable fair dealings, any new legislation should provide illustrative examples of Parliament's intent to what should be considered fair dealing, while still being flexible enough to accommodate unforeseen activities that would be generally considered fair. At a minimum, it should be made clear that teaching, instructional or educational purposes are included within the meaning of "research purposes" in section 29 of the current act.

Archives Can Act on Behalf of Patrons for Fair Dealing Purposes
Archives should be able to undertake any action on behalf of a person, if the same action would be considered "fair dealing" if the person themselves had so acted.

This is imperfectly addressed in the current act. Section 30.2 of the Copyright Act permits archives to do anything on behalf of a person that the person may do personally under section 29 [fair dealing] or 29.1 [fair dealing for criticism or review] of the Act, but not section 29.2 [fair dealing for news reporting].

This prevents archives from making fair dealing reproductions of copyrighted works for news reporting purposes. Paradoxically, if a news reporter were to make their own copy of a work for news reporting purposes, it would not be an infringement. But if the archives makes the copy, it would be seen as infringing under the current act. Because of the fragile nature of archival holdings, many archives do not permit patrons to make their own reproductions of items in archival holdings.

Any new legislation should permit archives to do anything on behalf of a person that would be considered fair dealing if done by the person themselves, and not be limited to undertaking only a subset of permitted fair dealing activities.

Submitted on behalf of the City of Vancouver Archives by:

Heather M. Gordon
Archives Manager
Vancouver