An Agenda for Posterity: Copyright and the Collective Canadian Past

I would like to thank the Ministers and the facilitator of this consultation for this opportunity to participate in this consultation process.

I come to the copyright debate as someone with a keen interest in using the cultural materials of our collective past. Unfortunately, there are several key areas in which the existing provisions of the Copyright Act either do not allow for the legitimate interests of posterity, and in some cases actively work against those interests.

In my submission I will first make several general observations which guide my approach to the copyright debate. I will then make some more detailed analyses and recommendations for legislative changes.

General Observations

1. The Copyright Act overall is not archaic.

Contrary to popular myth, or, more to the point, the myth promulgated by proponents of ever-stronger copyright, the Canadian copyright regime is not archaic, antiquated, or out of date. It is true that the current Copyright Act traces its origin to 1921¹ (not, as is sometimes claimed, the 19th century.) However, the Copyright Act is also one of the most frequently amended pieces of federal legislation. The ink was barely dry on the 1921 act before it was amended², and there have been forty other amendments to Canadian copyright laws in the decades since — one amendment approximately every two years.

By far the majority of these amendments have been in recent decades (seven in the 1980s, eleven in the 1990s, seven in the 2000s). In fact, between 1981 and 2005 inclusive, Canadian copyright laws were amended on an average once every eleven months. And not only has the pace of amendments steadily increased in recent decades, the scope of the amendments (as measured by the number of provisions amended, added, or repealed) has increased even more dramatically, as the following figures show.³

The net effect of this near-constant revision to the Copyright Act is that less than 6 percent of the original 1921 Act survives, unaltered, to the present day. Expressed a different way, less than 2 percent of the current Copyright Act derives, unaltered, from the act of 1921. There are some good reasons for amending the Act, yet again — but being "old" or "out of date" are not among those reasons.

2. Limitations to copyright have cultural and economic value.

There is no doubt that the existence of copyright is economically important, allowing copyright owners (who so desire) to monetize the works which they created (or otherwise own). It also allows them, in a general sense, to "control" their cultural products, though only to the extent that this is possible in the real world, to the extent that they desire to do so, and within the metes and bounds of copyright and other laws.

This last point is especially important. Copyright, other intellectual property rights, and other laws which govern the use of cultural material, for economic purposes or otherwise, are not unlimited. Copyright in particular is limited in scope (only certain cultural products are protected by copyright, and not others), breadth (copyright consists of a specific 'bundle' of rights, but not others, and there are limitations on those rights), and extent (copyright is limited in time.)

Limitations on copyright include the finite term of copyright protection; the lack of copyright protection in mere ideas, unoriginal works, or insubstantial portions of otherwise copyrighted works; and the statutory exemptions to what might otherwise be construed as infringing acts. Copyright policy and its attendant laws must recognize that these limitations themselves have important cultural and economic value. To offer just a few examples:

• A search of over 22-million listings for resale books on ABE-Advanced Book Exchange, a British Columbia-based intermediary re-selling website, shows that 3 percent of the listings are recent print-on-demand copies of sometimes classic, but often obscure, public-domain works.⁴
• Digitization efforts such as canadiana.org and ourroots.ca rely on their public-domain status to make thousands of historical sources available to Canadian researchers and students.
• The Copyright Board has declined to issue licenses to users of works with unlocatable copyright owners, where no license is needed because the amount of copying is not substantial⁵, or because copyright no longer subsists in the work.⁶ This has allowed published, museums, and other institutions to pursue their own cultural activities which build on the cultural past.
• The 2005 winner of the popular CBC Radio series Canada Reads was Rockbound by Frank Parker Day, who died in 1950.⁷ The public-domain status of the work at the time of its sudden new popularity resulted in windfall revenue for the publisher of the then-current edition, revenue which could then be used to help bring to the press new works by living authors.
• Nearly one-quarter of the titles published by Canadian imprint Prospero Books between 1999 and 2008 were facsimile or other republications of public-domain works, including valuable and otherwise hard to obtain historical Canadian works on topics as diverse as the War of 1812, the Beothuck people of Newfoundland, and pioneer life in Ontario.⁸
• And, as Erna Paris, Chair of Writers Union, has recently stated, "Neither I, nor the Writers' Union of Canada, rejects fair dealing as currently enshrined in Canadian law. Fair dealing is as valuable to writers as to anyone else."⁹

Copyright absolutism and copyright maximalism are dangerous to culture and the cultural economy. Copyright not only is limited, but it also should be limited. Proposed reforms to the Copyright Act must reject absolutism and maximalism in favour of a truly balanced approach.

3. Copyright law resonates through time.

Amendments to copyright law, as with amendments to any other kind of law, come in response to political and economic pressures that operate in and around the present. They are responses to present circumstances, recent events, or short-term political and policy goals.

However, copyright law has a broad temporal effect. Changes made to the Copyright Act today have an impact on how we use, re-use, and understand our collective past now, and into the future. And changes to the Copyright Act are prospective, meaning that they will continue to have an impact on existing cultural works, works which are created today, and works which are created tomorrow, long into the future. The Copyright Act, as it exists today, has an impact on how we use our collective past. And the Copyright Act, whether or not it is ever amended again, has and will continue to have an impact on how we use our collective past, into the future.

The interests of those who use and re-use cultural material, and the interests of posterity, are legitimate interests in the interminable copyright debate. Failure of policy makers and legislative drafters to consider and incorporate those interests into the shape of copyright law, is a failure to balance the Copyright Act. Copyright law which does not attempt to mitigate the deleterious impact of copyright on understanding our past, is not balanced. As will be described more fully below, there are several areas of the existing law which are conspicuously unbalanced when viewed through this prism, and several recent proposals for "reform" which would further unbalance the law to the detriment of posterity.

4. Technological neutrality is essential.

In the documentation on this current copyright consultation, it is stated:

The current copyright legislation was enacted in 2001. It is important that any new legislation that is tabled not only reflect the current technological reality, but is also forward-looking and can withstand the test of time…

It has been more than 10 years since the last major reform of this important legislation. During that time, new technologies have fostered new ways to create and use copyright material, as well as new distribution models and consumer products. Updates are needed to ensure that Canada's copyright laws are modern and so that Canada can regain its place as a leader in the global digital economy.¹⁰

These statements are problematic. Technology, including technology used to create, manipulate, and distribute cultural material, will always move at a faster pace than the law. If copyright law is to "withstand the test of time", then it cannot be made in knee-jerk reaction to technologies which, these days, often have shelf-lives measured in months.

It is quaint, if not ludicrous, to look back on the 1921 Copyright Act and its express references to "perforated rolls". Indeed, it is both quaint and ludicrous already to read the references in the current act to "a dry-erase board, flip chart or other similar surface"; a provision enacted just last decade.¹¹ Any changes to the Copyright Act must be technologically neutral, and any future bill to amend the act should similarly "neutralize" existing technology-specific references.

Detailed Discussion and Recommendations

No term extension.

No term of copyright, as currently provided for in the Act, should be extended. The current term is long enough, and, in fact, despite rhetoric claiming the opposite, Canada's life+50 years general term is the term adopted by the largest number of countries around the world, with the largest share of the world's population.

There is already a growing body of work which debunks economic arguments in favour of misguided copyright term extensions.¹² In fact, as described in greater detail below, there are certain cases in which this round of copyright law amendment should result in shorter terms of copyright than presently provided for.

Canada should also take a leadership role on the international stage in recognizing the importance not just of copyright, but also the importance of limits to copyright. In particular, Canada should oppose bilateral and multilateral treaty copyright term extensions, and, in the very near future, support international efforts to combat copyright maximalism in its various forms.

End Crown Copyright.

In Canada, works produced by government are subject to copyright protection. It is not entirely clear any more what these works are being "protected" from.

Government works are not created out of any creative impulse. They are created for the purpose of maintaining a public record, conducting public affairs, or pursuant to statutory or regulatory obligations. Unlike works created by individuals, or even by corporate persons with lucrative pursuits in mind, government works are not the product of an artist or creator's mere motion. There is a legitimate public interest in the use, re-use, and dissemination of public information, and of works, of all classes, created by public authorities in the exercise of their powers and duties. There is also a strong public interest in preventing the kind of abuses of Crown copyright recently seen in at least one province.¹³

The federal government did take one small step in the right direction in 1997, with the Reproduction of Federal Law Order,¹⁴ which provides:

Anyone may, without charge or request for permission, reproduce enactments and consolidations of enactments of the Government of Canada, and decisions and reasons for decisions of federally-constituted courts and administrative tribunals, provided due diligence is exercised in ensuring the accuracy of the materials reproduced and the reproduction is not represented as an official version.

However, this modest step does not go far enough. It is limited to "law", meaning that other government publications (including, for example, Parliamentary proceedings, government reports, etc.) are not covered by the authorization to reproduce. It excludes lucrative purposes, including commercial publication, from the ambit of the order. It is contained in an obscure regulation, rather than in the text of the Copyright Act itself, which works against simplicity in the law and public knowledge of it. And it is only operative at the federal level, although some jurisdictions, such as British Columbia,¹⁵ Manitoba,¹⁶ and Ontario¹⁷ also provide limited public licenses, of a sort, for reproduction of provincial laws.

The continued existence of Crown copyright is problematic not only on the policy or philosophical grounds noted above, but also because it is increasingly out of step with international practice. The copyright laws of many developed countries specifically exclude some or all government works from copyright protection.¹⁸

The policy case for abolition of crown and other government copyright, at least in respect of classes of works broadly described as "public legal information", has recently, and more ably, been made by Elizabeth F. Judge.¹⁹ Canada should therefore give strong consideration, in this round of copyright reform, to curtailing, or abolishing outright, Crown copyright as it currently stands.

At very least, abolish perpetual Crown copyright.

Failing the bold step of outright abolition of Crown copyright, Canada must, at bare minimum, abolish the perpetual copyright in unpublished documents which are, as defined in s. 12 of the current Act, "prepared or published by or under the direction or control of Her Majesty or any government department". The language of this section, a relic of the 1911 British legislation²⁰ from which it was borrowed holus-bolus, gives rise to the necessary implication that a Crown "work" which is never published remains under copyright in perpetuity. The very unsatisfactory result is that many millions of perfectly useful historical documents cannot technically be reproduced by modern researchers without infringing Crown copyright.

The problem of perpetual Canadian copyright in unpublished works by non-Crown authors was addressed, though with lingering problems (see below) in the 1996 round of amendments. The problem of perpetual Crown copyright was also remedied in the United Kingdom, which modernized its 1911 provision in 1988. It is long past time for Canada to bring its Crown copyright provision in line with modern expectations. However, I would strongly contend that the 1988 British provision still provides too long a copyright term to unpublished Crown works (creation+125 years).

There are, it is true, other concerns related to the dissemination of government documents, but these are adequately addressed by the statutory regime concerning protection of personal information held by governments, and by official secrets legislation. If no bolder action on Crown copyright can be expected in this round, then s. 11 of the Act must be amended to abolish perpetual Crown copyright in unpublished works, with a shorter term than the overlong 125 years provided for in the UK, and with no "transitional" provision delaying the immediate creation of a public domain in historical government records.

The problem of perpetual Crown copyright has festered long enough.²¹ Canadian researchers and repositories, the Canadian public, and the interests of posterity, demand that this anachronism be remedied in this round of copyright reform.

Improve the provisions surrounding "orphan works".

An amendment to the Copyright Act two decades ago²² first gave the Copyright Board the power to license the use of a work where the user cannot locate the owner of copyright. This is often referred to as the "orphan works" problem.

While Canada can be commended for its early recognition of, and attempts to address, the orphan works problem, the approach that we have taken is problematic in several respects.

First of all, there is no real attempt within the Act to limit the scope of the orphan works problem in the first place. The general rule of copyright term is life of the author plus fifty years, or, in the case of anonymous and pseudonymous works, publication of the work plus fifty years. These rules are well-established by international practice, sensible, and simple to apply — but only as long as you know the triggering date, either the death of the author or the publication of the work. However, there are many works for which the triggering date cannot easily be determined by a stranger to the work. Indeed, there are cases where this is not possible at all, leaving works in a copyright limbo where it is impossible to determine with any certainty whether the work's copyright still subsists or has expired.

For such works, the Act should provide an "escape hatch" that would allow for their certain transition to the public domain, or allow for liberal use which does not give rise to infringement liability on the part of the user.

Second, there is no acknowledgement of the very real, and common situation where the "trail" of copyright ownership is impossible to trace not because it has "gone cold", but because it has simply stopped. A creator or other personal, non-creator owner of a copyright may die intestate and without any known heirs. A corporate owner of copyright may be wound down or otherwise cease to exist without its copyrights being disposed of.

In such cases, other forms of property, such as real property, personal effects, and financial assets, are dealt with under laws pertaining to intestate succession, escheat, etc. The parallel should apply in respect of copyright. Canada should take an approach that has been adopted in at least some other jurisdictions,²³ and provide in the Act that there is and cannot be a copyright without a copyright owner. If the line of succession of ownership of a copyright is irreparably broken, the copyright in that work should cease to subsist.

Third, as noted below in the context of photographs, the existing provisions only apply in respect of published works. The Board has no jurisdiction to license the use of unpublished works, whether they be privately held or held in archives or other institutions. This presents an impediment to the legitimate use of cultural and patrimonial materials. This lacuna should be closed.

Finally, the Copyright Board has, in recent years, engaged in what may be described as an overly close relationship with copyright collectives in respect of the administration of licenses to use unlocatable-owner works. In the past two decades, ten different collectives have received over $30,000 in license fees for the use of orphan works. Indeed, in 1999, the Board formalized its relationship with one collective (CanCopy/Access Copyright) concerning the licensing of "unlocatables", through a memorandum of understanding.

Remember, that in order for a user to obtain an "unlocatable" license, the user has to establish that the owner of copyright cannot be located. One of steps involved in this search process, as outlined by the Board's own procedures, is to:

Start by contacting the copyright collective societies that deal with uses you are interested in. One of them may represent the copyright owner and be able to provide you with the owner's name and address or tell you whether the owner is dead or living abroad.²⁴

[Emphasis added]

In other words, part of your search process involves contacting collectives, establishing that they do not represent the owner of the work in question… and then paying the collective anyway.

This is fundamentally unfair to the user. As one collective, Access Copyright, has recently told its members, in the context of this very copyright consultation, "…you need and deserve to get paid for what you do…"²⁵

Set aside for a second the fact that not all Access Copyright copyright-owner members have, in fact, "done" anything except acquire copyright in someone else's work, if it is axiomatic that Access Copyright's members, or those of any other copyright collective, be paid for what they do, then it must also be axiomatic that those same members should not be paid for what they did not do. Yet Access Copyright alone has collected license fees in respect of 40 percent of the "unlocatable" licenses issued to date for which the immediate payment of fees has been required, and has collected almost half of the total such license fees paid by users. In the boilerplate language of the Board's decisions, the collective "may dispose of the said amount as it sees fit for the general benefit of its members." Of the hundred or so such licenses issued to users under the condition of paying fees to a collective, only seven have ever resulted in license fees being paid back out to the author or non-author owner of copyright.²⁶ In the remaining majority of the cases, the collective has, at least so far, kept the fee.

Part of the process of proving that a work has an unlocatable copyright owner is to show that the work is not administered collectively. The collectives and their members have had nothing to do with the creation of the works in question, and do not deserve to be paid. This is unjust and not balanced, especially given that the collectives bring nothing to the process that either the Board itself cannot do, or which the collectives shouldn't do anyway, voluntarily, in terms of promoting the "unlocatables" process and trying to match license fees to owners.

If the Copyright Board is going to insist on the payment of fees, in advance, for the use of "unlocatables", then the Board itself should receive and, where possible, disburse the fee amounts to rightful owners. If the Board is not willing to voluntarily cease the practice of involving collectives in the administration of orphan works copyrights, then the Act should be amended to preclude this unfair burden on publishers and other users of such works, and the unjust benefit to collectives and their members.

Harmonize the term of copyright for all works by the same author.

In addition to the continuing problem of perpetual Crown copyright in unpublished Crown works, described above, Canada did have, until recently, an identical problem with perpetuities in relation to literary works that remained unpublished, even long after the deaths of their authors. Under the former s. 7 of the Act, copyright in such works subsisted until published.

After many decades of pressure on this issue, Parliament finally agreed to amend s. 7 in its 1997 bill. The resolution struck at that time was that, where the author died in or before 1948, their unpublished works would pass out of copyright at the end of 2003, after a five-year "transitional" period. Authors who died in 1999 or after would have the same term of copyright for all their works, regardless of publication status. And authors who died between those dates, namely from 1949 to 1998 inclusive, would have their unpublished works come into the public domain on January 1, 2049.

(Note that none of these dates are actually spelled out in the section, which relies, very unwisely, on a reference to a separate coming-into-force order to determine the effective dates. The unwieldy incorporation by reference has confused even experts in Canadian copyright law.²⁷)

This compromise did not satisfy at least one literary estate, which fought for, and nearly got, an extension to the term of copyright for a year-class of authors which would have included the copyrights in unpublished works by their author.²⁸ While that political and legislative effort fell through, and the works in question transitioned to the public domain as Parliament intended, there remains the continuing problem and inconsistency that the "middle" class of unpublished author-works, by those who died in the second half of the twentieth century, will remain under copyright even long after their published copyrights expire. By way of example, the "middle" class of author includes William Lyon Mackenzie King, Harold Innis, and Robert Service. All of their published works are already public domain in Canada under the life+50 rule; none of their unpublished materials are. Unpublished works by authors such as the former Prime Minister will end up with nearly a century of copyright term, and half a century longer than their published works, by the time the transitional period in s. 7 fully runs its course.

This chart shows the discrepancy in graphic form, with green representing the unfettered public domain:

If, as the Department of Canadian Heritage has intimated, "simplification" of the Act is a goal for government, then there are few better places to start the simplification process than s. 7. Remember as well that any further amendment to s. 7 will not impinge upon the existing copyright interests of any living author in respect of their own works: the "transitional" problem only exists in respect of authors who are already dead. This section should therefore be amended with a view towards making the term of copyright uniform for all types of works with the same authorship, and with a view towards an earlier transition to the public domain for the "middle" class of author-works than the existing date of 2049.

On the international scene, Canada should also push the United Kingdom, which has a similarly over-long "transitional" period of copyright in unpublished works, and any other Commonwealth or other country which has inherited this defect of early 20th-century British copyright law, to likewise "harmonize" terms for published and unpublished works of the same authorship. The British law is especially troublesome given the depth of archival material held in the United Kingdom, but pertaining to the history of Canada and other post-colonial countries.

Recognize the distinct nature of photographs in general.

Bill C-61, which mercifully died on the Order Paper, would have repealed ss. 10 and 13(2) of the existing Copyright Act, a set of provisions which "carve out" photographic works from the general rules concerning the first ownership of copyright. While this provision is usually described, as in the summary of the bill, as giving "photographers the same rights as other creators", this over-simplistic approach fails to recognize that in several important aspects, photographs are not like other types of works.

In particular, unlike published books, recordings, cinematographic, or other "formal" works, or even unlike many "informal" literary works such as unpublished documents and other written communication, photographs very rarely include information on the authorship, other ownership of copyright, or date of creation of the work. Not only does such information not inhere to the tangible form of the work, out of the many millions of photographs taken in Canada every year, only an infinitesimal fraction are registered as is optional under the Act, even as among those photographs which are created by professional photographers for commercial purposes. All of these pieces of information are vital for third parties to determine whether a photographic work is still protected by copyright, and if it is, who the owner of that copyright is.

Some concrete examples will iUustrate the "photographs problem" more clearly:

• On at least two occasions,²⁹ the Copyright Board has had to deny applications to license the use of photographs under its unlocateable copyright owners regime, because it was impossible to determine whether or not the photographs in question had ever been published. Under the existing legislative framework, the Board cannot license the use of unpublished works.
• The photographic collections of Library and Archives Canada alone, let alone the many other public archival collections in Canada, contains more than 25,000 item-level records in which the photographer is listed as "unknown" or "inconnu".³⁰ And not all of LAC's photographic holdings are described at the single-photograph item level.
• A very cursory search of Google Books yields 5,500 books and other printed works, from among Google's very small sampling of the world's printed material, with the phrase "photographer unknown"/"unknown photographer" or the equivalent phrases in French, German, Spanish, Italian, Portuguese, and Russian.
• Memorial University of Newfoundland's admirable Digital Archives Initiative includes photographic collections such as the Grenfell Mission Photograph Album and the International Grenfell Association Lantern Slides Collection, which contain numerous images, most or all of which are less than 100 years old, but not one of which can be attributed to any specific photographer.

It is easy for photographs to lose their attachment to their own vital statistics, and to do so, quite often, very early in their existence. Indeed, think of the problem that will be created by changing the rule of first ownership of copyright in photographs when a third party takes a photograph on behalf of someone, using that person's camera and medium. This is the classic tourist "could you take our picture?" conundrum — the person who hands their camera to a stranger, who they may never meet again, is also handing that person the copyright in the resulting photograph.

At the same time, it is also clear that there are compelling interests on the part of third parties to make use of photographic heritage in new ways, including cultural and economic re-use. Any changes to the Copyright Act concerning photographs must respect that balance, and recognize the problems inherent to photographs as a class of works. This balance must include:

• liberal fair dealing rights
• recognition that it is often impossible to determine whether a photograph is even under copyright, let alone the identity of the author or subsequent non-author owner of copyright, and
• protection from infringement for any use, including economic uses, of a photograph where its copyright status or ownership cannot reasonably be determined by a user.

Furthermore, given the casual and informal circumstances in which the vast majority of photographs are taken, collective administration of copyright in photographs is not a viable or desirable approach.

Recognize the distinct nature of commissioned photographs in particular.

An additional problem with C-61's photography provisions concerned its intended repeal of s. 13(2). The section, as it currently stands, provides that in the case of a commissioned photograph, the first owner of copyright is the person who commissions it, subject to any agreement to the contrary with the photographer.

In point of fact, most commercial photographers already use their standard-form contracts to reverse the s. 13(2) presumption, taking advantage of the imbalance of knowledge and economic power that already exists between the photographer and client. The C-61 approach would have taken away even that presumption, and consequently, taken any remaining economic power away from the purchaser of the photographer's services.

As noted above in the general discussion, photographs tend to dissociate themselves very early in their existence from the information concerning authorship, non-author ownership of copyright, and date of creation, that is so necessary to determine, down the road, whether the photograph is still protected by copyright, and, if so, who the owner of that copyright might be. Consider this thought experiment: can you say with any certainty who took your parents' or grandparents' professional wedding or graduation photograph? Is that photographer still alive? If the photographer is dead, did they die more or less than 50 years ago? And if less than 50, who now owns the copyrights in their photographs?

Nor is this a problem simply with "old" photographs. Your submitter has in his own collection recent commissioned family photographs which carry a stern copyright warning — but absolutely no information whatsoever about the author, owner of copyright, or date of creation of the photograph.

The explanatory note to Bill C-61 talked of giving photographers "the same rights as other creators". Unfortunately, the Bill C-61 amendments would also give consumers of domestic commercial photography fewer rights than the consumers of other professional services. It would be ludicrous, and unthinkable, that the builder of an addition to your house would continue to have rights to that addition for the rest of his life, and his heirs for fifty years after that, or that they could assign their "buildingright" to any third party.

Bill C-61 did make one feeble attempt in the direction of consumer protection with its proposed paragraph 32.2(1)(f), which would have provided that it was not an infringement of copyright

for an individual to use for private or non-commercial purposes a photograph or portrait that was commissioned by the individual for personal purposes and made for valuable consideration, unless the individual and the owner of the copyright in the photograph or portrait have agreed otherwise.

However, this provision suffers from the same flaw as the existing s. 13(2) presumption in that it would be subject to contractual override. Past experience has shown that the photographers would, in almost all cases, insist on this override. In addition, the exemption from infringement is only for "private or non-commercial purposes", forestalling, for example, publication in an author's biography of their own commissioned domestic photography — even many years down the line, when, as noted above, the copyright status and ownership of the work will usually be impossible to trace.

The proponents of Bill C-61 also pointed to provincial and territorial privacy laws as prohibiting the unauthorized use of domestic commissioned photographs. The nature of Canadian federalism, in which provinces have jurisdiction over "Property and Civil Rights" under s. 92 (13) of the Constitution Act, 1867, may make the invocation of provincial privacy or personality law inevitable. However, it is worth noting that many countries build such privacy-type protections into their national copyright laws.³¹

Not only does the C-61 approach lead to a patchwork of law across the country, it does not solve the problem of providing the commissioner or subject of such photographs with a positive right to use their own image in the future, at a time when the information about the authorship of the photo, and the subsistence (or not) of copyright, will almost certainly no longer attach to the work itself. Their right to use that image, as well as the right of the photographer to do so (or for the photographer to be estopped from doing so) goes to the heart of copyright: the right to copy. As such, provisions concerning the right of the photographer to use such images, the right of commissioners or subjects to prevent such use, and the right of commissioners or subjects to use the image which they paid for or sat for, must be contained within the Copyright Act itself. Again, there are numerous countries whose national copyright laws provide the subject of commissioned portraits, as well as, in some cases, third parties such as heirs or family members, a positive right to use such works, or even ownership of the copyright itself.³²

The C-61 approach is dangerous when viewed from a point of view of posterity, and must be rejected in any new legislation.

Allow for the preservation of digital heritage by a wider range of institutions.

Under s. 30.5 of the Copyright Act, Library and Archives Canada — and only that institution — is shielded from an action for infringement of copyright for carrying out its mandate, pursuant to s. 8 (2) of the Library and Archives of Canada Act,³³ to capture and preserve internet content for posterity.

This is an admirable goal, but one which should be open to all public heritage institutions to pursue. Internet content today, and for the past two decades, will in time prove to be as important as conventional content or ephemeral literature have been in the past. It is not an infringement of copyright for any institution to collect printed material, recordings, manuscript, artefacts, or other cultural materials. Technological neutrality, and the interests of posterity, demand that internet and other digital content be placed on the same level playing field.

Furthermore, to completely level the playing field, Canadian institutions in addition to LAC should have the same protection that LAC enjoys under the Copyright Act. Just as there is no one institution that can be relied on to collect every book and serial, posterity requires that we do not rely on any one institution to preserve internet or other digital Canadiana. In fact, posterity requires us to encourage and allow all heritage institutions to pursue their diverse mandates and collection-building interests, without risk of copyright liability. Not only will a wide variety of collection mandates be fulfilled, but also, by allowing for distributed collection, in a variety of locations and with a variety of technologies, the risk of catastrophic loss of cultural material will be lessened substantially.

Already, millions of digital files from the early days of the internet have been irretrievably lost, due the transient nature of the web, the failure of institutions and other cultural actors to recognize the importance of such works, and the failure, once they did so recognize, to do anything about it. One obstacle, among others, were heightened, and often hair-trigger sensitive, concerns about copyright. Many early websites, including a great deal of early web-Canadiana, were hosted by free hosting services which no longer exist, such as xoom.com³⁴, or whose final shutdown is imminent, such as geocities.com.³⁵ While user-generated content sites such as FaceBook or YouTube may be dominant now, a year, let alone a decade, is a long time on the internet.

For all these reasons, the privilege accorded to Library and Archives Canada under s. 30.5 of the Act should be extended to any archive, library, or museum.

Technological protection measures must be tied to copyright.

Every Canadian has read, or heard of, Anne of Green Gables, by Lucy Maude Montgomery. Not so many have heard of Anne of Green Gables, the film. Not the 1980s-vintage adaptation, but rather the 1919 silent film, one of the earliest film adaptations of a Canadian novel.

Not one print of this film is known to survive, although, almost miraculously, promotional film posters for the lost movie have been recovered.³⁶ Was the 1919 Anne a cinematic tour de force, or a farce? We will probably never know. Along with many other films of the period, which disintegrated or were simply lost or discarded, it is a lost work; as irretrievably lost as the library of Alexandria of antiquity.

The interests of posterity, especially in a rapidly evolving universe of digital hardware and software, demand that technological protection measures (TPMs), and digital rights management, must be allowed, and given legal protection, solely for the purpose of preventing copyright infringement. That is to say, that the circumvention of such measures must not, in and of itself, constitute a public offence or give rise to any private right of action. Circumventing "protection" technology must be perfectly legal for any use or purpose which does not constitute copyright infringement, including the purposes of research, preservation of cultural materials, fair dealing, and any use which would not, even in the absence of technological measures, be infringing. In the context of posterity, it is vital that repositories and users be allowed to "migrate" content for the purposes of research and preservation, and to avoid problems associated with media decay and hardware or software obsolescence.

The linking of legal protection for TPMs must also recognize that copyright is not perpetual. Copyrights expire after a legally-defined term. Not only are TPMs problematic for archives and archival users in a technological sense, contributing to the problem of technological obsolescence, they are also problematic in a legal sense when, in the future, they may prevent the unfettered use of cultural materials in which copyright no longer even subsists.

A great deal of Canadian cultural material has already been lost to past generations of technological obsolescence. As Desmond Morton said in 2002:

You know the problem. In your house, do you have players for eight-track cassettes, those old RCA Victor Red-Label 78 rpm discs, or the reel-to-reel tapes you used to record your grand dad's war reminiscences? We all know the fate of old celluloid movie film. Have you looked at those old videotapes of our kids at the beach? We did. And so have the archivists. Nada. Nothing. Or nothing much. Those wartime radio intercepts were recorded on steel wire. A little damp and they mostly turned quietly to rust. A 40-year delay in tackling the official history of the Royal Canadian Navy is just too darned bad. Because of the confidentiality for census documents, we can't be sure that the computer tapes of the United States 1960 census are now unreadable. No one has a machine to read CENIO or census Input-Output. In fact, all U.S. data before 1989 is in a similar plight. As in Canada, years of funding and staff cuts have added to the problem. When I recently moved to a computer, I was in time for Phillips and those really big "floppy disks". Two years later, in 1989, I was forcibly converted to smaller, not-so-floppy discs. As a junior Greeny, I gave up paper and kept my output on disc. Have you checked the discs lately. Did they work? What happened?³⁷

Any law surrounding, and protecting, TPMs and related hardware or software protection of copyright, must ensure that future generations are not "protected" from exploring their own cultural past. Copyright law must not add to the problem of obsolescence. Furthermore, it must allow for archives and researchers to prevent obsolescence from impeding access to, and the very survival of, Canadian cultural content. We cannot deliberately build the route to more lost Annes into our cultural property laws.

Recapitulation of Recommended Amendments

1. There should be no extension of any copyright term currently provided for in the Act.
2. Crown copyright should be abolished, or…
3. …at very least the perpetual copyright in unpublished Crown works should be abolished, and
   1. with a shorter term than the one adopted in the United Kingdom.
   2. without a "transitional" period, so that a public domain in historical government records will come into being immediately.
4. Address the growing orphan works problem
   1. by clarifying the rules concerning copyright term in marginal cases.
   2. by providing that there is no copyright in the absence of a copyright owner.
   3. by extending the scope of the existing "unlocatable" licensing regime.
   4. by removing the collectives from the administration of "unlocatables" licensing
5. Close the discrepancy in the copyright term between published and unpublished works by the same author earlier than the currently-provided transition date of 2049. Canada should also urge the United Kingdom, and any other country which inherited a similar problem from British copyright law, to do the same.
6. Recognize, and address, the very real problem of determining the ownership of copyright, and its very subsistence, in respect of photographic works.
7. Recognize, and address, the legitimate interests of the subjects or commissioners of domestic photographs to not only estop the use of the resulting image, but to positively use those images.
8. Allow for, and encourage, the collection and preservation of digital cultural materials, by removing any doubt about the copyright legality of such curatorial activities by cultural institutions.
9. Attach any legal recognition and protection for technological protection measures to the protection of copyright itself, so that there is no infringement of TPMs unless there is infringement of copyright (or a copyright to infringe).

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¹ An Act to Amend and consolidate the Law relating to Copyright, S.C. 11–12 Geo. V., c.24 (Return to Text)

² An Act to Amend the Copyright Act, S.C. 13–14 Geo. V., c.10 (Return to Text)

³ Figures derived from the annual and revised Statues of Canada. This analysis is current to January 2008. (Return to Text)

⁴ Based on returns of searches made on abebooks.com the week of August 1–7, 2009. (Return to Text)

⁵ See decisions of the Copyright Board in Files 2007-UO/TI-22 and 2003-UO/TI-21. (Return to Text)

⁶ See decisions of the Copyright Board in Files 2005-UO/TI-36 and 2004-UO/TI-20. (Return to Text)

⁷ Tabaret (University of Ottawa), Fall 2005; Ottawa Citizen, June 29, 2005, p. F1 (Return to Text)

⁸ Based on an analysis of records returned by a search of Library and Archives Canada's AMICUS system, August 5, 2009. (Return to Text)

⁹ Blog comment posted to michaelgeist.ca, August 8, 2009. (Return to Text)

¹⁰ http://copyright.econsultation.ca/topics — sujets/show-montrer/11 (Return to Text)

¹¹ Copyright Act, s. 29.4(1)(a) (Return to Text)

¹² See Breyer, The Uneasy Case for Copyright, Harvard Law Review 84:2, 1970; Amicus brief of George A. Akerloff et al., in Eldred v. Ashcroft, Supreme Court of the United States, May 20, 2002; Institute for Information Law, The Recasting of Copyright & Related Rights for the Knowledge Economy, University of Amsterdam, 2006; Centre for Intellectual Property and Information Law, Review of the Economic Evidence Relating to an Extension of the Term of Copyright in Sound Recordings, University of Cambridge, 2006. (Return to Text)

¹³ http://www.straight.com/article-249911/darrell-evans-challenging-bc-governments-abuse-crown-copyright (Return to Text)

¹⁴ SI/97-5 (Return to Text)

¹⁵ http://www.gov.bc.ca/com/guidelines.html (Return to Text)

¹⁶ http://www.gov.mb.ca/legal/copyright.html (Return to Text)

¹⁷ http://www.ontario.ca/en/general/004222 (Return to Text)

¹⁸ For examples, see the copyright laws of Austria, § 7(1); Germany, § 5 (1); Denmark, article 9; Finland, Article 9; Israel, Article 6; Italy, Article 5; Netherlands, Article 11; Norway, § 9; Japan, Article 13; Republic of Korea, Article 7; Brazil, Article 8; Uruguay, Article 45 (5); Spain, Article 13; the United States, § 105. (Return to Text)

¹⁹ Crown Copyright and Copyright Reform in Canada. In Michael Geist (ed.), In the Public Interest: The Future of Canadian Copyright Law. Irwin, 2005, pp. 550–594. (Return to Text)

²⁰ Copyright Act, 1&2 Geo. V., Ch. 46, s. 18 (Return to Text)

²¹ See, for example, Keyes and Brunet, Copyright in Canada: Proposals for Revision of the Law, Consumer and Corporate Affairs Canada, 1977; Gina La Force, Archives and Copyright in Canada: An Outsider's View, Archivaria, Winter 1980/81, pp. 37–51; Barry Torno, Crown Copyright in Canada: A Legacy of Confusion, Consumer and Corporate Affairs Canada, 1981; David Vaver, Copyright Law, Toronto: Irwin, 2000, p. 107. (Return to Text)

²² S.C. 1988, c. 15 (Return to Text)

²³ See the copyright laws of Brazil, article 45; Dominican Republic, article 23. (Return to Text)

²⁴ http://www.cb-cda.gc.ca/unlocatable-introuvables/brochure2-e.html (Return to Text)

²⁵ http://www.accesscopyright.ca/Default.aspx?id=262 (Return to Text)

²⁶ Copyright Board of Canada, personal communication, September 2009. (Return to Text)

²⁷ See http://publicdomain.xanga.com/195193123/item/ (Return to Text)

²⁸ Howard Knopf, Mouse in the House: A new bill in Ottawa appears to adopt U.S.-style copyright term extension. National Post, June 7, 2003, FP 11 (Return to Text)

²⁹ See decisions of the Copyright Board in Files 2004-UO/TI-32 and 2004-UO/TI-37. (Return to Text)

³⁰ Search conducted on Library and Archives Canada's web site, August 14, 2009. (Return to Text)

³¹ See, among others, the copyright laws of Argentina, article 31; Barbados, s. 17; Belgium, Article 10; Denmark, article 60; Dominican Republic, article 52; Fiji, s. 94; Finland, article 27; Hungary, article 72; Iceland, article 25; Mexico, article 87; Poland, article 81-1; Sweden, article 27. (Return to Text)

³² See the copyright laws of Algeria, article 20; Antigua and Barbuda, s. 22. (5); Australia, s. 47J; Austria, article 75 (1); Barbados, s. 22(3); Belize, s. 18; Czech Republic, article 37 (2); Finland, article 40; Germany, § 60; Hong Kong, s. 15; Portugal, article 168. (Return to Text)

³³ S.C. 2004, c. 11 (Return to Text)

³⁴ http://en.wikipedia.org/wiki/XOOM (Return to Text)

³⁵ http://en.wikipedia.org/wiki/GeoCities (Return to Text)

³⁶ Ottawa Citizen, May 2, 2002, p. F1 (Return to Text)

³⁷ "Finding the Future in the Past". Canadian Speeches, August 1, 2002. (Return to Text)