Canadian Association of Music Libraries, Archives and Documentation Centres (CAML)

Submission To: Industry Canada and Canadian Heritage

Subject: 2009 Copyright Consultation

From: Canadian Association of Music Libraries, Archives and Documentation Centres (CAML)

Date: September 12, 2009

The members of the Canadian Association of Music Libraries, Archives and Documentation Centres (CAML) welcome the opportunity to comment on how copyright legislation affects our work. CAML members ask for a balanced Copyright Act that will protect the rights of creators and copyright holders as well as the legitimate rights of music-scholars, educators, musicians, music students and other users (music librarians and archivists act on behalf of these users).

CAML represents librarians, archivists, educators and researchers in the field of music. Members are drawn from universities, colleges, Library and Archives Canada, provincial archives, music conservatories, orchestra and radio libraries, the Canadian Music Centre, the Canadian National Institute for the Blind and public libraries.

Music librarians and their principal patrons are both creators and users of copyrighted works. In academic libraries, users are musicians (performers and composers), music historians and theorists, music students and academics in other disciplines (i.e. modern languages faculty searching for musical settings of poetry; engineers researching acoustics; sociologists, psychologists, neurologists etc. examining how music inter-relates with their discipline). In conservatories, users are generally performers, composers and music students; in orchestra libraries they are the conductor and performers; in radio libraries users are the staff members of the station; in LAC, the provincial archives, CNIB and public libraries, users include all Canadians.

Canadian music libraries are major purchasers of and subscribers to copyrighted music materials, including music books and reference sources (print and digital), scores, sheet music, scores and parts (ensemble music without grand rights that can be legally purchased), music journals in both print and electronic formats, compact discs and other audio formats, commercial music streaming services for libraries, DVDs and other video-recording formats. We are also procurers (through purchases and gift-in-kind donations) and conservators of archival materials, artefacts and rare music items.

,p>Copyright is an intrinsic part of our work as music librarians and archivists. What we can do for our users, how we do it and the associated expenses involved are often determined by copyright.

There are six key issues that we would like to see addressed in reforms to the Copyright Act.

1. Fair Dealing:
   Integrate the Supreme Court’s six factors for determining fair dealing into the Copyright Act. The judgement in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 clearly supports balancing the rights of creators and the rights of users. Incorporate language that does not strictly limit the uses of fair dealing. Fair dealing rights should be format neutral, e.g. allow researchers to use a digital audio copy of a sound recording to analyze mixing techniques. Fair-dealing rights should not be superseded by technological protection measures (TPMs) or by obligatory licenses. Robust fair dealing provisions will help foster innovation and creativity.
2. Technological Neutrality:
   Music libraries and archives have witnessed and dealt with a number of technological changes and advancements in textual, audio and audio-visual formats. Protection that is provided strictly for specific technologies and/or business and distribution models is beneficial for neither creators nor users. A technologically neutral law will allow the law to adapt to new technologies, business models and distribution mechanisms.
   
   Over the past twenty years, the same content for audio materials in music libraries has generally been repurchased three to four times over (vinyl to cassette to compact disc to commercial online audio subscriptions; in the case of audio subscriptions it is an ongoing annual fee). Format and technology changes happen more frequently with audio recordings than in most other media. The new format/technology generally requires new equipment and/or software to play the track and conversely the track cannot be played on older equipment/software. It appears as though this trend will continue in the digital environment. These changes are happening with increasing frequency. Music libraries try to provide patrons with content that they can use at home. Most large music audio collections have been developed through careful selection over time. Depending on the size of the collection, libraries might need to replace the equivalent of 25,000 CDs every few years just to maintain existing content. Commercial audio subscriptions for libraries do not cover all genres and do not offer the breadth of content required by music researchers. Canadian music libraries cannot sustain this type of expenditure. Copyright reforms need to allow for new business models that will permit libraries to maintain and grow their collections.
3. Contract Law and Licensing Issues:
   As mentioned above, licenses (i.e. e-journal and e-book subscriptions) should not negate fair dealing rights and other exceptions.
   
   A complication for music libraries regards the increasing number of new recordings (from both large and small labels and self-recording performers) that are licensed only for individual use. New compact discs are including bonus mp3 tracks that again are licensed strictly for individual use. Libraries and archives are unable to download, hold and preserve this content.
4. Technological Protection Measures (TPMs):
   Circumvention of TPMs should only be illegal when the circumvention is for infringing purposes.
   
   Format, time and place shifting should be allowed for legally acquired content. A compact disc could be signed out at different times to different faculty members. This single CD could be played in different classrooms across campus. Many licenses for digital audio recordings do not allow for this flexibility (e.g. if a faculty member teaches two tutorials of the same course but they are held in different classrooms, the purchased licensed audio track may not work in the second classroom).
   
   Music libraries and archives would like to make available to our users video materials from all over the world; many of these items are in non region 1 DVD format or in PAL video format. If technological locks cannot be tampered with to make a useable copy, research and teaching in a number disciplines will be seriously impeded.
5. Perceptually Disabled Users:
   Copyright law in Canada should be amended to provide perceptually disabled users with equitable access to library and archival resources. Licenses and TPMs cannot supersede the rights of disabled users to access of information / cultural materials. Format neutral language would ensure that various alternate formats are not excluded from the Act. Technologically neutral language would ensure that technological advances that assist the perceptually disabled can be utilized.
6. Preservation:
   The existing Libraries Archives and Museums exceptions (LAM) do not take into account new technologies. Digital information degrades at a much faster rate than print or analog media and it is often impossible to retrieve data once the degradation is noticed. The current LAM exceptions allow a single copy to be made of a rare or unpublished work if the item is (or is at risk of) deteriorating, damaged or lost, for on-site viewing if the original is too fragile, in an alternative format if the original format is obsolete, for insurance and police investigation purposes and for restoration purposes. Since it is difficult to know which media will show the least amount of content degradation or format (and its associated technology) obsolescence, it is important that new copyright legislation allow rare materials be copied into and kept in multiple formats (digital and print) for preservation purposes.
   
   Many audio recordings are not commercially transferred from one format/technology to the next. If TPMs restrict transferring these works to the most recent format/technology then large sections of cultural heritage will be lost.