What Canadian archivists know about copyright and where they get their knowledge

Archivaria

Volumn 69, Issue , 2010, Pages 77-116

  Dryden, Jean ^a  

^a UNIVERSITY OF MARYLAND   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 82455190123     PISSN: 03186954     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (68)

1. Laura J. Murray and Samuel E. Trosow, Canadian Copyright: A Citizen's Guide (Toronto, 2007), p. 1.
2. See also Todd J. Burke and Glenn Smith, "A Survey of E-Discovery Case Law in Canada, " in E-Discovery in Canada, pp. 23-27.
3. Théberge v. Galerie d'Art du Petit Champlain Inc., [2002] 2 S.C.R. 336, 2002 SCC 34 [Théberge], para. 30.
4. Teresa Scassa, "Interests in the Balance, " in In the Public Interest: The Future of Canadian Copyright Law, ed. Michael Geist (Toronto, 2005), p. 56.
5. Judith Ellis, ed., Keeping Archives, 2nd ed. (Port Melbourne, 1993), p. 477.
6. See also Todd J. Burke and Glenn Smith, "A Survey of E-Discovery Case Law in Canada, " in E-Discovery in Canada, pp. 23-27.
7. Diane M. Zorich, A Survey of Digital Cultural Heritage Initiatives and Their Sustainability Concerns (Washington, 2003), p. 27.
8. Paula de Stefano, "Selection for Digital Conversion, " in Moving Theory into Practice: Digital Imaging for Libraries and Archives, eds. Anne R. Kenney and Oya Y. Rieger (Mountain View, 2000), p. 11.
9. See, for example, Library of Congress National Digital Information Infrastructure and Preservation Program, Joint Information Systems Committee, Open Access to Knowledge (OAK) Law Project, and SURFfoundation, International Study on the Impact of Copyright Law on Digital Preservation (July 2008), http://www.digitalpreservation.gov/library/resources/pubs/docs/digital_preservation_final_report2008.pdf (accessed on 17 December 2009).
10. Archival material consists in large part of old, largely unpublished documents in a variety of documentary forms, some of which may be subject to different statutory provisions. The age of archival holdings often makes it difficult to identify and locate rights holders, and the fact that archival material is largely unpublished means that some of it is subject to longer terms of copyright protection than the life of the author plus fifty years.
11. Sandra L. Wertz, "Knowledge of the 1976 General Revision of the Copyright Law by College and University Media Center Directors in the United States" (PhD diss., University of South Carolina, 1984).
12. Wanda Noel's Staff Guide to Copyright: National Archives of Canada (Ottawa, 1999) is widely used in archival repositories across the country.
13. For countries whose copyright laws fall within the Anglo-American copyright tradition, such articles reflect similar issues across national boundaries and time. See, for example, the following articles that reflect Canadian, American, British, and Australian experience, respectively: Jean E. Dryden, "Copyright in Manuscript Sources, " Archivaria 1 (Winter 1975).
14. Grace Maurice Hyam, "The Working Paper on Copyright: A Preliminary Response, " Archivaria 4 (Summer 1977).
15. Sally Maynard and J. Eric Davies, The Cost of Copyright Compliance in Further Education & Higher Education Institutions (Loughborough, 2001), pp. 13-17, 21.
16. Charles Oppenheim and Ilona Woodward, "A Survey of Copyright Advice and Guidance in UK Higher Education Libraries, " Library and Information Research, vol. 28, no. 89 (2004), pp. 50-56.
17. Livia Iacovino, "Teaching Law in Recordkeeping Courses: The Monash Experience, " Archives and Manuscripts, vol. 25, no. 2 (1997), pp. 266-87.
18. John N. Gathegi and Darrell F. Burke, "Convergence of Information and Law: A Comparative Study Between i-schools and Other ALISE Schools, " Journal of Education for Library and Information Science, vol. 49, no. 1 (2008), pp. 1-22.
19. Nancy Zimmelman, "A Census: Report on Continuing Education, " American Archivist, vol. 69, no. 2 (2006), pp. 388-89.
20. Copyright Act, R.S.C. 1985, c. C-42, s. 7(4). Posthumous works are literary, dramatic, or musical works or engravings that were not published or otherwise disseminated during the author's lifetime.
21. The term of copyright protection for photos taken after 1948 changed from creation plus fifty years to the life of the author plus fifty years (except where the author is a corporation whose shares are widely held, in which case the term provision of creation plus fifty years continues to apply). See An Act to Amend the Copyright Act, S.C. 1997, c. 24, ss. 7 and 54.1 (now s. 10 of the Copyright Act).
22. Robert L. Kidder, Connecting Law and Society: An Introduction to Research and Theory (Englewood Cliffs, 1983), p. 136.
23. See also Todd J. Burke and Glenn Smith, "A Survey of E-Discovery Case Law in Canada, " in E-Discovery in Canada, pp. 23-27.
24. Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes (Cambridge, MA, 1991), p. 141.
25. Jean E. Dryden, "Copyright in the Real World: Making Archival Material Available on the Internet" (PhD diss., University of Toronto, 2008), available at https://tspace.library.utoron to.ca/ (accessed on 17 December 2009).
26. The alphanumeric identifiers are used in reporting the findings.
27. The questionnaire addressed a range of issues; however, only the responses to selected ques tions are reported here. The complete questionnaire is available in Dryden, "Copyright in the Real World, " pp. 278-95.
28. See also Todd J. Burke and Glenn Smith, "A Survey of E-Discovery Case Law in Canada, " in E-Discovery in Canada, pp. 23-27.
29. British Columbia, Alberta, Manitoba, Western Ontario, Toronto, Montréal, McGill, Laval, and Dalhousie.
30. Following the 1997 amendments to the Act, the Bureau of Canadian Archivists (BCA) Copyright Committee developed a curriculum for a two-day workshop "on Canadian copyright law and its application to archives [to be] available to any association or institution wishing to sponsor the workshop" (see BCA Copyright Committee 1998-9 Annual Report). The workshop was intended to be taught jointly by an archivist and a copyright lawyer.
31. http://plc.fis.utoronto.ca/courses.asp?listorder=1 (accessed on 18 July 2009).
32. http://www.slais.ubc.ca/COURSES/ce.htm (accessed on 18 July 2009).
33. http://sim.management.dal.ca/Continuing_Education/; http://www.slis.ualberta.ca/ workshops.cfm (both accessed on 18 July 2009).
34. Noel, Staff Guide.
35. Lesley Ellen Harris, Canadian Copyright Law, 3rd ed. (Toronto, 2001).
36. Since 2002, copyright lawyer Lesley Ellen Harris has offered online courses on copyright. One interviewee and one questionnaire respondent reported having taken one of her online courses.
37. Bill C-32 (An Act to Amend the Copyright Act, S.C. 1997, c. 24) received royal assent in April 1997; its provisions are now part of the Copyright Act. However, as will be discussed, some research participants appear to think that Bill C-32 is the Copyright Act.
38. In December 2005, responsibility for the Copyright Committee was transferred from the Bureau of Canadian Archivists to the Canadian Council of Archives. The earlier name has been retained because it was correct at the time of data collection for this study.
39. Wanda Noel and Elizabeth Hawkins, The New Copyright Law and Archives (Ottawa, 1999).
40. The 2004 amendments repealed two statutory requirements that directly affected repository operations: an archives had to 1) attempt to locate the copyright owner before making a copy for a patron's research or private study, and 2) keep records of such copies made for patrons (Copyright Act, s. 30.21(5) and (6). Amendments to the Copyright Act were part of the statute merging the National Archives and the National Library to establish Library and Archives Canada (Library and Archives Canada Act, S.C. 2004, c. 11, s. 21(3).
41. Wanda Noel and Elizabeth Hawkins, The New Copyright Law and Archives (Ottawa, 1999).
42. These sources are somewhat misleading because they do not deal with archival material, and neither archival material nor digital copying fall within the scope of Access Copyright licences.
43. At the time of writing (July 2009), significant amendments to the Act have yet to be made.
44. The Arcan-l listserv is provided "for the discussion of archival issues and interests of particular relevance to Canadian Archives and archivists" (see http://www.mailman.srv.ualberta.ca/ mailman/listinfo/arcan-l (accessed on 17 December 2009). Many of the provincial archives associations also have listservs for their members.
45. The BCA Copyright Committee uses the Arcan-l listserv to disseminate information about developments in copyright law.
46. th Parl., 2005.
47. Donald O. Case, Looking for Information: A Survey of Research on Information Seeking, Needs, and Behavior (San Diego, 2002), pp. 142, 289.
48. Fifty questionnaire respondents provided comments on what they would change about copyright law to make their jobs easier. Of those, twenty-two called for the Act to be simplified or clarified, or for an interpretive guide, or both.
49. In five of the six cases where the in-house copyright specialist would be consulted first, that specialist is within the parent body but outside the repository. Thus, the in-house specialist was not included in the "archival colleagues" category.
50. Noel, Staff Guide.
51. Two other university archives refer their website users to the university's copyright officer for further information about copyright; however, it is not known whether these archivists also consult the copyright officer.
52. One other repository uses only the first sentence.
53. Only two detailed guides prepared to assist repository staff in applying copyright to their holdings were available to this study.
54. Copyright Act, s. 7(3).
55. S. 30.21(3) lists the conditions a library, archives, or museum must comply with before making copies of archival holdings for researchers. 55 Although Bill C-32 received royal assent in 1997, its provisions were not fully in force until 1999.
56. Before the 1997 amendments, posthumous works were protected for fifty years after the date of publication. If the work was never published, the effect was perpetual copyright protection because the event that triggered the fifty-year term never occurred. The 1997 amendments phased out perpetual protection for posthumous works by providing the standard term of protection (life of the author plus fifty years) to works whose authors die after 31 December 1998, whether or not the works were published during the author's lifetime. However, to be fair to those authors' heirs who thought they had perpetual protection in their ancestor's unpublished work, two transitional provisions were provided. The first has expired; it provided that posthumous works by authors who died before 31 December 1948 were protected until 31 December 2003 (Copyright Act, s. 7(4). The second transitional provision provided that posthumous works by authors who died between 31 December 1948 and 31 December 1998 were protected until 31 December 2048 (s. 7(3).
57. Until the American copyright law was amended in 1976, unpublished works were protected, not by the statute, but by common law, and as long as a work remained unpublished, the creator's rights never expired. In 1976 the law was amended to provide that all works, published or not, are subject to a statutory term of protection. In one sense, these details are irrelevant, because common law copyright does not exist in Canada (s. 89), and because American copyright law does not apply in Canada. However, two repositories appear to have borrowed or adapted wording that refers to common law copyright.
58. Copyright Act, s. 7(1). 59 Posthumous works published after the author's death and before 31 December 1998 are protected for fifty years from publication.
59. Consistent with this restrictive approach documented on their website, this repository's questionnaire response to a question asking them to indicate what, if anything, they would change about copyright law that affects their job, called for a provision that researchers be allowed to copy material for private research, a provision already in the Act.
60. Copyright Act, s. 14.2(1).
61. www.laws.justice.gc.ca/en/C-42 (accessed on 17 December 2009).
62. An Act to Amend the Copyright Act, S.C. 1997, c.24.
63. However, this does not appear to be the case for Repository 4R, whose website also includes a link to Bill S-16, a private bill introduced in the Senate that died on the order paper when Parliament was prorogued in 2004, and was not reintroduced. Because repository 4R's ques tionnaire response also refers specifically to Bills C-32 and S-16 ("CCA (Canadian Council of Archives) projects must fall under Can. Copyright law Bill C-32 & Bill S16"), it appears that the belief that these two bills are the copyright law is well-entrenched in this repository. 65 This policy decision may, however, be based on an interpretation of s. 30.21 (which permits an archives to make a single copy of an unpublished work in its holdings for researchers) as prohibiting making a copy of a published work.
64. While this is still true for photos in which the author is a corporation whose shares are widely held, the responses do not mention that distinction.
65. The initial version of the bill that resulted in the 2004 amendments was popularly referred to as "The L.M. Montgomery Copyright Term Extension Act" because it was widely perceived to reflect efforts by Montgomery's estate to extend the term of copyright protection in her unpublished letters. Their efforts were not successful; the provisions for an extension of the term of copyright protection were removed from the bill in the course of its passage through Parliament.
66. One interviewee was not asked about any of these specific changes because it was evident from earlier responses that the volunteer-run repository lacked the resources, expertise, and interest to follow copyright. Another person declined to answer the question about the CCH case.
67. See Digital Libraries Curriculum Development project at http://curric.dlib.vt.edu, and the various stages of the DigCCurr project at http://ils.unc.edu/digccurr/index.html (both accessed on 17 December 2009).
68. Kidder, Connecting Law and Society.