Copyright is “the exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something”, such as a literary, research or artistic work. As such, copyright applies to nearly all of a research library’s materials, from books to online scholarly articles.
In Canada, copyright is governed by the Copyright Act, which regulates the use and reproduction of intellectual and artistic creations. The Copyright Act was updated in 2012 to take into consideration digital developments since the Act’s last update in 1997. As part of this copyright modernization process, the Government of Canada committed to a five-year legislative review which will take place in 2017, and CARL will be participating in that process.
Copyright protection automatically applies to every original work, whether registered or not. It includes books, articles, photographs, charts, graphs, diagrams, maps, recordings, works of art, broadcasts, videotapes, and performances, whether in digital or analog formats
Copyright gives rights holders (usually creators or publishers) the exclusive right to copy or to authorize someone else to copy their works. There are, however, a number of important legal exceptions to these exclusive rights, including fair dealing and exceptions specifically for libraries, archives and museums.
Ideas, facts and originality
Ideas and facts are not protected by copyright; only works that are original and fixed, for example written on paper or produced onto any media, are protected by copyright. A work is considered original when it is the product of the author’s own skill, judgment, and creativity, has not been copied, and demonstrates more than a trivial, mechanical level of skill and judgment. For example, statistical data on the Canadian population itself would not be protected by copyright, whereas a chart presenting this data in a specific way may be.
Duration of copyright
The term of copyright protection is usually fifty years after the death of the creator in Canada. However, some types of works, such as sound recordings or films, may have a different length of copyright. After copyright on a work expires, it becomes part of the public domain. The terms of the Trans-Pacific Partnership Agreement require Canada to extend its term of protection to the life of the creator plus seventy years, which will require an amendment to the Copyright Act.
The public domain includes all works that are not protected by copyright. Generally, works enter the public domain in one of three ways: when copyright expires, when the work was created before copyright protection existed, or when the copyright owner chooses to put a work in the public domain, thus choosing to forfeit copyright.
Works in the public domain can be freely copied, distributed, modified, adapted and performed without permission from the author and do not require payment of royalties.
Copyright Exceptions and Fair Dealing
Copyright exceptions allow research libraries and their patrons to reproduce and share parts of materials without infringing copyright laws. Fair dealing is an exception in the Copyright Act that allows the copying of limited portions of copyrighted material for specific purposes, provided that the use is ‘fair’. Using copyrighted material for a fair dealing purpose does not infringe copyright. In fact, it is considered a user right in Canada.
This term describes the situation where the owner of a copyrighted work cannot be identified and located by someone who wishes to make a use of the work that requires permission of the copyright owner. It is important to be aware of Canada’s legal framework and the Copyright Board’s jurisdiction when pursuing use of works where the copyright owner is unknown. A provision in Canada’s Copyright Act (s. 77) permits the Copyright Board to issue a non-exclusive license to a user whose “reasonable efforts” to locate a copyright owner have been unsuccessful. The provision in the Act does not list specific criteria regarding what is “reasonable,” and the Copyright Board has not established formal regulations, which leaves the Board with a flexible margin of interpretation in deciding what constitutes “reasonable efforts.” Research libraries, archives, museums and partnering organizations undertaking collection digitization projects will likely encounter this issue in seeking permission to digitize older works that may not be in the public domain.
Crown copyright is the copyright held by governments (in Commonwealth countries) over their publications. In Canada, both the federal and the provincial governments may assert Crown copyright. Crown Copyright is covered in Section 12 of the Copyright Act. The term of copyright is 50 years from the date of publication. Government of Canada has issued a license under its Open Government initiative that allows the user to “copy, modify, publish, translate, adapt, distribute or otherwise use the information in any medium, mode or format for any lawful purpose,” including commercial use. For libraries, this means that Crown material can be digitized without seeking permission.
Creative Commons Licensing
In order to facilitate access to and use of their digital-format works by others, researchers, instructors, librarians and students may not need or want to hold all traditional rights with respect to the use of their works by others. The use of a Creative Commons license, which most commonly requires a user of a work to simply attribute the work used to its author, can encourage the reading, citing, and re-use of a work (e.g., through a translation or a derivative work) by others. The use of a Creative Commons license allows an author or creator to retain rights that he or she considers personally or professionally important (e.g., the right to be recognized as the author of the work) and to dispense with other rights (e.g., the right to require a request or royalties for non-commercial uses of the work). The use of Creative Commons licenses underpins the self-archiving or publication of works on an “open access” basis.
Copyright collectives manage the collection of royalties from users on behalf of a group of copyright holders (creators or publishers) and distribute royalty payments to the copyright holders. They also typically enforce copyright and engage in advocacy. In Canada, a collective has a non-exclusive license to manage copyright for a rights holder; the rights holder retains the ability to grant permissions and charge royalties (if desired) to users directly. Certain roles of copyright collectives are set out in the Copyright Act.