CARL - Library Exceptions - International Comparative Analysis

Library Exceptions - International Comparative Analysis

July 21, 2003

1. PURPOSE

The Standing Parliamentary Committee on Canadian Heritage has been assigned responsibility for the mandatory review required by section 92 of the Copyright Act. To prepare its submission to the Parliamentary Committee, the CARL Copyright Committee has requested a comparison of library exceptions in other countries with those in the Canadian copyright law. The purpose of the comparison is to determine whether the exceptions in the Canadian Copyright Act are more or less restrictive than exceptions in other countries. If broader library exceptions have been legislated in other countries, this will be helpful in persuading the Canadian government and Parliament to legislate broader library exceptions in Canada. The laws of other countries can also be used as models for legislation in Canada. The countries selected for comparison are Australia, the United Kingdom and the United States.

2. CAUTION

Comparing exceptions in one country with those in another is a lot like comparing apples and oranges. Exceptions in one country may be similar in some respects and very different in others. This makes comparisons difficult and problematic in several respects.

3. INTERNATIONAL OBLIGATIONS

Exceptions cannot be legislated if they are contrary to international obligations under the various copyright conventions and treaties. There are library exceptions for maintenance and management of collections, copying periodical articles and self-serve machines, as well as fair dealing/use provisions in the copyright laws of the various countries reviewed. This supports the position that these library exceptions are in compliance with international treaty and convention obligations. This view is now supported by the Supreme Court of Canada. In Théberge v Galerie d’Art du Petit Champlain Inc. the Court stated that the proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature….This is reflected in the exceptions to copyright infringement enumerated in ss. 29 to 32… .

4. FAIR DEALING

4.1 Canada
Sections 29 and 29.1 of the Canadian Copyright Act permit individuals to “deal fairly” with a work protected by copyright for the purposes of research, private study, criticism and review. Section 30.2 (1) permits library staff to assist users engaged in research, private study, criticism or review. Without section 30.2 library staff would not be able to assist a user by making a copy that the user would be entitled to make under sections 29 and 29.1.

4.2 Australia
Section 49A of the Australian Copyright Act contains a fair dealing provision that is less restrictive than the Canadian Act with respect to the making of copies for purposes of research or private study. The approach is also quite different. Sections 10(2) and 10(2A) define a “reasonable part” of a work as 10% of that work, or in the case of a digital text, 10% of the words. Fair dealing, in turn, permits copying a “reasonable portion.” Another difference is that the Australian exception is not limited to “fair dealing”. It also permits a library to make a copy of a part or the whole of a work (including not only articles published in periodicals but other published works as well). For works other than articles published in periodicals, the exception permits the library to make a copy of the whole or more than a “reasonable part” of the work provided it determines that a reproduction of the work (other than a second-hand copy) cannot be obtained within a reasonable time at an ordinary commercial price.

Section 49 of the Australian Copyright Act permits a library to make a work, or part of a work, available online to a user within the premises of the library, provided the library prevents the user from making an electronic copy or communicating the work using equipment supplied by the library. Sections 49 and 50 also allows an electronic copy to be communicated to the user or to another library, on condition that the library notify the user that the work may be subject to copyright protection, and, once the work is communicated, the library destroys any copy made for the purpose of the communication.

The Australian Copyright Act (section 43A) treats temporary reproduction that occurs as part of the process of making or receiving a communication as a non-infringing act.

Section 116A of the Australian Copyright Act allows circumvention of a technological protection measure if the circumvention is done by a library for the purpose of making a copy for research as permitted under fair dealing.

4.3 United Kingdom
The United Kingdom Copyright, Designs and Patents Act (sections 29 and 39) is also less restrictive than the Canadian Act with respect to the making of copies for purposes of research or private study. The United Kingdom Act not only permits a library to make a copy for a researcher or student within the limits of “fair dealing”, but also permits a library to copy a part of a published work for a user for purposes of research or private study, without limitation on the extent of the part.

4.4 United States
The United States Copyright Law is also less restrictive than the Canadian Act with respect to the making of copies for purposes of research or private study. Section 108 is not limited to “fair use”. It permits the library to make a copy of the whole of a work (including not only articles published in periodicals but other copyrighted works as well) or a substantial part of a work. The exception permits the library to make a copy of the whole or a substantial part of the work provided it determines that a copy of the work cannot be obtained at a fair price. Making multiple copies of portions of a work for classroom use is also permitted.

5. MAINTENANCE AND MANAGEMENT OF COLLECTIONS

5.1 Canada
An exception in section 30.1 permits a non-profit library, or a staff person acting under its authority, to make a copy of a published or unpublished work in its permanent collection, for itself, or for another library, in order to perform any one of the following maintenance or manage activities:

(1) Copying Rare or Unpublished Originals
Making a copy “if the original is rare or unpublished and is deteriorating, damaged or lost”, or is at risk of becoming so, is permitted as a maintenance or management activity. If a copy is “commercially available” in a medium and of a quality that is appropriate, the copy cannot be made.
(2) Copying Fragile Originals
Making a copy “for the purposes of on-site consultation 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” is permitted as a maintenance or management activity. If a copy were “commercially available” in a medium and of a quality that is appropriate, the copy cannot be made.
(3) Copying into an Alternative Format
Making a copy “in an alternative format if the original is currently in an obsolete format or the technology required to use the original is unavailable” is permitted as a maintenance or management activity. If a copy is “commercially available” in a medium and of a quality that is appropriate, the copy cannot be made.
(4) Copying for Record Keeping and Cataloguing
Making a copy “for the purpose of internal record-keeping and cataloguing” is permitted as a maintenance or management activity. It does not matter whether the work is “commercially available.”
(5) Copying for Insurance and Police Investigations
Making a copy “for insurance purposes or police investigations” is permitted as a maintenance or management activity. It does not matter whether the work is “commercially available.”
(6) Copying for Restoration
Making a copy “if necessary for restoration” is permitted as a maintenance or management activity. It does not matter whether the work is “commercially available.”

5.2 Australia
The exception for preservation in the Australian Copyright Act (section 51A) is broader in scope than the Canadian exception. It applies to any published work in a library collection that has been damaged, has deteriorated or has been lost or stolen, not just to rare and fragile published materials. The Australian exception is also less restrictive than the Canadian exception, in that it only requires the library to confirm, before making the copy, that it was unable to obtain a copy (not including a second-hand copy) within a reasonable time and at an ordinary commercial price. There is no restriction pertaining to the availability of a licence from a collective.

Section 116A in the Australian permits circumvention of a technological protection measure if the circumvention is done by a library for the purpose of preservation as permitted under section 51A.

5.3 United Kingdom
Section 42 in the United Kingdom Copyright, Designs and Patents Act contains an exception for preservation. This exception is also broader in scope than the Canadian exception. It applies to any copy made in order to preserve or replace an item in the library’s permanent collection, not just to copies of rare and fragile materials. The United Kingdom exception is also less restrictive in that it only requires the library to confirm that it is not reasonably practicable to purchase a copy of the item. There is no restriction pertaining to the availability of a licence from a collective.

5.4 United States
Section 108 of the United States Copyright Act contains an exception for preservation. This exception is also broader in scope than the Canadian preservation exception. It applies to any copy made for purposes of preservation, not just to copies of rare and fragile materials. The United States exception only requires the library to determine that it is not possible to obtain a copy of the work at a fair price. There is no restriction pertaining to the availability of a licence from a collective. The United States exception is more limited, however, in that it can only be exercised during the final twenty years of copyright protection.

6. COPYING PERIODICAL ARTICLES

6.1 Canada
Section 30.2 permits a non-profit library to make a single copy of an article from a scientific, technical or scholarly journal provided the copy is to be used only for research or private study purposes. The library can also make a single copy of an entire article in a newspaper or other periodical if the issue is at least 12 months old at the time of copying and the copy is used for research or private study purposes. Works of fiction, poetry, dramatic and musical works are specifically excluded from the permitted copying. The exception is limited to “reprographic reproduction.” A library may make the specified copy for their own patron or for the patron of another library. The person receiving the copy must be given a paper, not a digital, copy. Any intermediate copy must be destroyed once the copy is given to the patron. The copy must not be made “with motive of gain.” A library will have a “motive of gain” if it were to recover more than the costs, including overhead costs, associated with making the copy.

Library Record Keeping Responsibilities
Regulations provide that a library, or a person acting under the authority of one, must record the following information when a copy is made under the exception permitting the making of a single copy of a periodical article for research and private study and when making a copy for a patron under fair dealing :

record the name of the library making the copy
record the name of the requesting library (if an inter-library loan)
record the date of the request
record sufficient information to identify the item being copied
record the information in any manner that is capable of reproducing the information in intelligible written form within a reasonable time
keep the records for at least three years from the date of making the copy
the information with respect to copies made of a work shall be made available once a year, upon request, to the copyright owner, the owner’s representative, or a collective society authorized by the owner of copyright in the work to grant licences
the library is required to make the information available to the person making the request within 28 days after the receipt of the request or any longer period that is agreed to both by the library and the requester
the request must be in writing, indicate the name of the author of the work and the title of the work, and be signed by the person making the request.
Stamping of Copied Works
The library is required give the patron requesting the copy notice that: “Any copies made or provided must be used only for the purposes of research and 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”.

Intermediate Copies
An intermediate copy made in order to copy a periodical article must be destroyed once the copy is given to the patron. An example of this is where a photocopy is made in order to fax a copy to a patron.

Acts Undertaken Without Motive of Gain
Library staff cannot make a copy under fair dealing or copy a periodical article for research and private study if the activity were “carried out with motive of gain.” A library will not have a “motive of gain” if the library making the copy, or a person acting under its authority, recovers no more than the costs, including overhead costs, associated with the making of the copy.

6.2 Australia
Sections 49 and 50 of the Australian Copyright Act permit a library to copy articles for research. The Australian exception is more permissive than the Canadian law. The Australian Act does not prohibit copying of current articles (those published within the previous twelve months), nor is copying limited to articles published in scientific, scholarly or technical publications. The Australian Act also does not prohibit the copying of poetry, dramatic or musical works and works of fiction as is the case in Canada.

The Australian Copyright Act (section 50) is also less restrictive than the Canadian Act with respect to copying articles for research, in that it allows copying to be done from an original in electronic form, provided the article cannot be obtained on its own in electronic form within a reasonable time and at an ordinary commercial price. The Australian Act also allows a copy to be supplied to another library in electronic form, on condition that once the copy is delivered, the supplying library destroys any copy made for the purpose of the supply that it holds.

Section 116A of the Australian Copyright Act permits the circumvention of a technological protection measure by a library for the purpose of making a copy of an article in a periodical as permitted under section 50 of the Act.

6.3 United Kingdom
Section 38 of the United Kingdom Copyright, Designs and Patents Act contains an exception permitting a library to copy articles for research. This exception is more permissive than the Canadian law. The Act does not limit copying of current articles (that is those published within the previous twelve months) nor is it limited to articles published in scientific, scholarly or technical publications. The United Kingdom Act also does not prohibit the copying works of fiction, poetry, dramatic or musical works as is the case in Canada. The United Kingdom exception does not restrict the method of copying articles to reprographic reproduction. Nor does it restrict the source of the copy made for another library to printed matter as is the case in Canada. In the United Kingdom libraries may deliver a digital copy to the patron of another library.

6.4 United States
Section 108 of the United States Copyright Act is also more permissive than the Canadian Copyright Act regarding the copying of articles for research. In the United States library copying is not limited to articles published within the previous twelve months or to articles published in scholarly, scientific or technical journals. Nor is the copying of works of fiction, poetry, dramatic or musical works prohibited as is the case in Canada. In addition, the exception in the United States covers contributions in collections protected by copyright The United States Copyright Act does not restrict the method of copying to reprographic reproduction. Nor does it restrict the source of a copy made for another library to printed matter. The United States law also does not prohibit the delivery of a digital copy to the user of another library.

7. SELF-SERVE MACHINES INSTALLED IN LIBRARIES

7.1 Canada
If a library in Canada has signed, or is negotiating, an agreement with a collective, it may qualify for an exception related to the use of self-service copy machines by library patrons. It is difficult for a library to control what is copied on self-serve copying machines. Because of this fact, section 30.3 provides that a library is not legally responsible for what their patrons do on self-service photocopying machines on their premises, subject to two conditions. Both conditions must be met.

1. A copyright notice, containing at least the following information, is affixed to, or within the immediate vicinity of, every photocopier, in a place and in a manner that is readily visible and legible to persons using the photocopier:

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; or3. A licence agreement between this institution and a collective society or a tariff, if any.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 penalties for infringement of copyright.

2. The library is participating in a licensing system available for reprographic reproduction. A library will meet this condition if:

it has a licence for reprographic reproduction with a collective society;
it is in the process of negotiating such a licence with a collective society;
a tariff, or the terms and conditions of a licence, for reprographic reproduction have been established by the Copyright Board; or
the responsible collective has filed a proposed tariff with the Copyright Board.
CARL libraries meet the second condition because they have a licence with Access Copyright or COPIBEC. If this condition were not met, a library could be responsible if a patron were to make an unauthorized “reprographic reproduction” (photocopy) of a work protected by copyright using a machine installed on the libraries’ premises.

7.2 Australia
Section 104B of the Australian Copyright Act provides an exception for self-serve copying. If an infringing copy of either a published edition of a work or a sound recording is made on a machine (including a computer) in a library, and a warning notice was posted in close proximity to the machine, the library cannot be deemed to have authorized the making of the copy merely because the copy was made on the library’s machine.

7.3 United Kingdom
There is no provision covering copying by library patrons on self-serve copying machines in the United Kingdom.

7.4 United States
Section 108 (f) (1) of the United States Copyright Act contains a provision that makes libraries and archives not legally responsible for the unsupervised use of reproducing equipment located on their premises provided that the equipment displays a notice that the making of a copy may be subject to the copyright law.

8. OBSERVATIONS

The above comparative analysis results in the following observations that could be useful during the section 92 review process being undertaken by the Standing Committee on Canadian Heritage:

1. While a fair dealing provision exists in the copyright laws of the countries reviewed, the provisions are very different. In the United States fair use for the purposes of teaching does not infringe copyright. Teachers, including university teachers, are permitted to make multiple copies of portions of works for classroom use under the fair use provision. This also includes copying works in electronic form. For example, a teacher can include portions of a work in online course materials. Australia permits copying of up to10% of a work under its fair dealing provision. The Canadian and United Kingdom’s fair dealing provisions are quite different from the United States and Australian provisions. Both have been narrowly interpreted and permit fewer uses.

2. Generally, fair dealing and exceptions dealing with the management and maintenance of library collections, library copying of articles for research, and to a more limited extent patron use of self-serve copying machines in libraries, do not violate the obligations of international copyright conventions and treaties. These exceptions are considered by the governments enacting them to not conflict with the normal exploitation of the subject matter or unreasonably prejudice the legitimate interests of rights owners.

3. Generally, the exceptions for libraries in Canada’s Copyright Act are more restrictive than the corresponding exceptions in the copyright laws of Australia, the United Kingdom, and the United States. The following general observations can be made about the Canadian copyright law when compared to the copyright laws of Australia, the United Kingdom and the United States:
- the conditions that have to be met are more onerous
- less copying is allowed
- the means by which copies can be produced is more restrictive
- the range and extent of materials that can be copied is more limited
- the conditions that have to be met beforehand are more onerous
- there are more limitations on the method of delivery of the copy to the user.