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Canadian Copyright Law
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Copyright Law and Libraries, Archives & Museums

The purpose of copyright laws around the world is to balance the interests of creators, owners and consumers of copyright materials.

Countries (like Canada and the U.S.) that adhere to the leading international copyright convention, the Berne Convention, may include special provisions in their laws, which do not "conflict with a normal exploitation of the work" and do not "unreasonably prejudice the legitimate interests of the author." Some countries interpret this portion of the Convention more broadly than others and allow for many "free" uses of copyright materials (such as the U.S.) whereas other countries (like France) interpret the Convention very narrowly.

Only recently did Canada amend her copyright laws to include a number of special provisions for libraries, archives and museums.

How to keep up to date on copyright law for libraries, archives and museums?

The Copyright & New Media Law Newsletter: For Libraries, Archives and Museums (http://www.copyrightlaws.com/index2.html) is a print newsletter which provides current information on copyright law specifically for libraries, archives and museums.

What are the specific provisions for libraries, archives and museums?

The current Canadian Copyright Act is at: http://canada.justice.gc.ca. A summary of the specific provisions for libraries, archives and museums is below:

To be eligible for these provisions, a library, archive or museum ("LAM") must be one not established or conducted for profit, and not part of, not administered, and not directly or indirectly controlled by, a body that is established or conducted for profit -- such as a special library like the library at IBM or the Royal Bank of Canada. Also, the LAM must hold and maintain a collection of documents and other materials that is open to the public or to researchers. The government may include other non-profit institutions by regulation.

Management and Maintenance

The LAM exceptions are divided into a number of headings. The first one allows a LAM to make a copy of a work or other subject-matter for the maintenance or management of its permanent collection. This applies to both published and unpublished works. It applies to works in the LAM's permanent collection or the permanent collection of another LAM. This exception applies in the following circumstances:

  • If the original is rare or unpublished and it is deteriorating, damaged or lost, or at the risk of deterioration or becoming damaged or lost (if a copy is not commercially available)
  • For on-site consultation purposes if the original cannot be viewed, handled or listened to because of its condition or because of the atmospheric conditions in which it must be kept (if a copy is not commercially available)
  • In an alternative format if the original is in an obsolete format or the technology required to use the original is unavailable (if a copy is not commercially available)
  • For internal record-keeping and cataloguing
  • For insurance purposes or police investigations
  • "if necessary for restoration".

Any intermediate copies made for making the above preservation copies must be destroyed as soon as they are no longer needed.

Fair Dealing

A LAM may reproduce on behalf of a patron anything that the patron would be permitted to copy under the fair dealing provision. There must be no motive of gain. Note that this is restricted to reproduction and not other rights in the Copyright Act. Therefore, if a patron may broadcast a part of a work under the fair dealing provision, this does not permit a library to do so on behalf of that patron. If the copy is made after December 31, 2003, there are no record keeping requirements when making this copy; otherwise, the record keeping requirements described below under c. Single Copies of Articles, apply to such copying.

Any copying done under this section must have text printed on the copy or a stamp applied to the copy or by other suitable means stating "that the copy is to be used solely for the purposes of research or private study" and "that any use of the copy for a purpose other than research or private study may require the authorization of the copyright owner of the work in question".

Single Copies of Articles

Certain articles from magazine and periodicals may be copied under the new library provisions. The exception applies to an article in a "scholarly, scientific or technical periodical" - a term which is not defined. It also applies to an article in a "newspaper or periodical" if that newspaper or periodical was published more than one year before the copy was made. Therefore, on May 1, 2000, you may not use this exception to copy an article in a newspaper published on January 1, 2000, but you may use it to copy an article in a newspaper published on January 1, 1999. "Newspaper or periodical" is not specifically defined in the law but is one other than a scholarly, scientific or technical periodical. An article in a newspaper or periodical does not include a work of fiction, poetry, or a dramatic or musical work.

For copying to take place under the above exception, a number of conditions must exist:

  • the person requesting the copy (i.e., the patron) must satisfy the LAM that he or she will not use the copy for a purpose other than research or private study.
  • the library may only provide the patron with a single copy of the article.
  • the copy must be made by "reprographic reproduction" which is generally photocopying and does not include, for example, scanning the article into a computer.
  • there must be no motive of gain.

To copy under this provision, certain records are required to be kept. The LAM must record the following information for each copy of each article made under this provision. Note that if the LAM has a licence with CANCOPY or COPIBEC and that licence covers this kind of copying, the LAM may copy under the licence and therefore would not be required to keep these records. Records required are:

  • the name of the LAM making the copy
  • if an interlibrary loan, the name of the requesting LAM (see below under d.) the date of the request
  • sufficient information to identify the work being copied such as title, ISBN, ISSN
  • if applicable, the name of the newspaper, the periodical or the scholarly, scientific or technical periodical in which the work is found
  • if applicable, the date or volume and number of the newspaper or periodical or the scholarly, scientific or technical periodical the numbers of the copied pages.

The library must keep a copy request form with the above information or may keep the information in any other manner that may be accessed in a readable form within a reasonable time, for example, in an electronic database. Such records must be kept for at least three years. The records must be accessible to the copyright owner, his or her representative, or a copyright collective in manners specified in the regulations.

Interlibrary Loan

One library may make a single copy of an article as described in c. above for a patron of another library. The article being copied must be in a "printed form". Also, the copy given to the patron may not be in a digital form.

Use of Copyright Warnings

There is a new provision in the law that states that a non-profit educational institution, library, archive or museum does not infringe copyright if a copyright warning is posted near a photocopying machines on its premises. For this provision to apply, the following conditions must be met:

  • the photocopier is installed by or with the approval of the school, LAM on its premises for use by students, instructors or staff at the school, or by persons using the LAM
  • the school or LAM has a licence with CANCOPY or COPIBEC or is in the process of negotiating one, or the school or LAM is paying a collective under a certified tariff or the collective has files a proposed tariff with the Copyright Board
  • a notice warning of infringement of copyright is affixed to, or within the immediate vicinity of, every photocopier in a place and manner that is readily visible and legible to person using the photocopier.
  • the notice must contain at least the following information:

Warning!

Works protected by copyright may be copied on this photocopier only if authorized by:

  1. the Copyright Act for the purpose of fair dealing or under specific exceptions set out in that Act;
  2. the copyright owner; or
  3. a licence agreement between this institution and a collective society or a tariff, if any.
  4. For details of authorized copying, please consult the licence agreement or the applicable tariff, if any, and other relevant information available from a staff member.

    The Copyright Act provides for civil and criminal Remedies for infringement of copyright.

    The Act does not provide a similar provision for other equipment such as a VCR or scanner, or a computer with Internet access, on a school or LAM premise, which may be used to infringe copyright. As such, following the above is no guarantee that a school or LAM may be exempt from infringement for illegal copying taking place on this equipment. However, it may be prudent to post similar warnings near such equipment.

    Archives Only

    In addition to the above provisions for LAMs, there is a special provision for archives to copy an unpublished work that is deposited in the archive. In order for this exception to apply, a number of conditions must be met:

    • the copyright owner must not have prohibited copying the work
    • the archive is satisfied that the person using the copy will only use it for research or private study
    • the archive may only make one copy of the work
    • any fees for copying must be limited to the archive's costs including overhead but the archive may not benefit from a profit for this copying
    • there must be no motive of gain.

    In addition, if the work deposited in the archive after September 1, 1999, then the archive must notify the person depositing the work in the archive that the archive may copy the work under this provision.

    Any copying done under this section must have text printed on the copy or a stamp applied to the copy or by other suitable means stating "that the copy is to be used solely for the purposes of research or private study" and "that any use of the copy for a purpose other than research or private study may require the authorization of the copyright owner of the work in question".

    Where an author of a work in an archive is still living or where he or she died on or after January 1, 1949, an archive may have further obligations regarding copying that work, if he or she has not already consented to copying by the archive. In these situations, the archive must try to obtain the permission of the copyright owner of the work (i.e., not necessarily the author or depositor of the work). If he or she consents, the archive may copy the work; if the owner does not provide permission to copy the work, then the archive may not copy the work. However, if the archive cannot locate the copyright owner after reasonable efforts to do so, the archive may make a single copy of the work provided the archive is satisfied the patron will use the copy only for research or private study and is not making a profit from that copy. The archive must keep a record of any copying done under this exception in the prescribed format.

    Note that donors can deposit works with archives even if they do not own the copyright in the works. This is because it is the physical property which donors give to the archives, and not the authorization to make any copyright uses with the materials. If a donor does own copyright, he or she can grant it to the archives. Whether or not the donor owns copyright in the deposited materials, the donor can request a deposit agreement with the archives which limits copyright and non?copyright uses by the archives. Thus, the Copyright Act does not always govern the use to which copyright material deposited with an archive may be put.

    In addition, there are some specific provisions for copying by the National Archives of Canada.

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