CANADA'S BILL C-32 AND ARCHIVAL RESEARCH

an e-mail message from Jim Miller, President, Canadian Historical Association/Societé historique du Canada (Professor of History, University of Saskatchewan)

(Editor's note: the status of Bill C-32 may have changed since November 7, when this was posted)

The Parliament of Canada is now engaged in "phase two" of an overhaul of copyright legislation that began during the prime ministry of Brian Mulroney (1984-93). At the present time, the Standing Committee on Canadian Heritage has under consideration a copyright amending measure known as Bill C-32.

Bill C-32 is concerned primarily with protecting the rights of "creators" of works, published and otherwise, and with rewarding them when their creations are broadcast or otherwise utilized for profit. Two of the principal issues that have arisen from Bill C-32 are "neighboring rights" (a provision by which radio stations will have to pay performance fees for recorded music, payments which will be remitted to composers and performers) and a surcharge on the sale of audio tape cassettes, the proceeds of which are to make their way to "creators" of tapes and CDs whose work -- it is assumed -- is copied surreptitiously.

There are many other aspects of Bill C-32 that have aroused public discussion, but these are two of the most controversial and most highly publicized. On the "neighboring rights" and cassette surcharge issues the second and third largest parties in the House of Commons, the Bloc Quebecois and the Reform Party, have taken diametrically opposed positions. The result has been that journalists have concentrated principally on these two aspects of Bill C-32.

For historians, genealogists, journalists, lawyers and any other group who make use of archival collections, there are two other portions of Bill C-32 that cause concern. These are provisions that prohibit photocopying of unpublished archival materials for research and private study, and that prolong the period of copyright protection for unpublished "works" in archives. A coalition of groups is mobilizing in Canada to seek changes to Bill C-32 to remove the obstacles to research that could be created by these provisions.

For reasons that are not at all clear, Bill C-32 will make it illegal for a researcher to photocopy -- or for an archivist to make a photocopy for a researcher -- an unpublished archival document that still enjoys copyright protection. A researcher will still be able to examine and make notes on such protected material in an archives, but the researcher will not be able to make a photocopy of the entire document for research and study purposes. The ways in which this provision will make archival research inconvenient and expensive are too numerous and obvious to discuss.

The other provision of Bill C-32 that is causing concern is the term prescribed for copyright protection of unpublished works. In some ways it seems ungrateful to complain of this, because Bill C-32 is actually an improvement: it ends the system of copyright in perpetuity that has existed in Canadian law (though it was usually not respected in practice). For such unpublished material created by someone who died 100 years or less prior to the coming into force of Bill C-32, copyright protection will persist for 50 years after the coming into force of the measure. For material created by someone who died more than a century prior to the coming into force of Bill C-32, protection will last for ten years after the coming force of the measure. In the future, copyright protection will be accorded the unpublished works of a person for fifty years after death.

This provision is, as noted, an improvement on what has existed formally; and it is important to note that this copyright protection of unpublished works will not prevent researchers from consulting the material deposited in archives. What it will prevent is treatment of the works as though they were in the public domain (e.g. reproduction for profit). However, these provisions will, like the prohibition on photocopying of a complete document, make archival research much more inconvenient and expensive.

As noted earlier, a variety of groups have been lobbying the Standing Committee on Canadian Heritage to modify Bill C-32 to make the production of a single photocopy for research/study purposes of an unpublished archival document legal, and to reduce the period during which unpublished archival material will continue to enjoy copyright protection. On 29 October a coalition of archivist organizations, as well as the National Archives of Canada appeared as witnesses before the Committee. On 19 November, The Canadian Historical Association/Societé historique du Canada will also appear. After 19 November Bill C-32 is expected to go to clause-by-clause study by the Committee.

What can you do? You can write your Member of Parliament (My MP, House of Commons, Ottawa, ON, K1A 0A6); or telephone (613-996-0506) or fax (613-992-7974) the Standing Committee's Clerk, Monique Hamilton; or e-mail the Chair of the Committee, Clifford Lincoln, M.P. (Lincoc@parl.gc.ca). Please ask Clifford Lincoln to make your views known to all members of the Standing Committee on Canadian Heritage.

I would suggest that in your messages you ask the Committee to do two things: to recommend an amendment to Bill C-32 that will make it explicit that producing a single copy of an unpublished copyright work for research or study purposes is not a violation of copyright; and to recommend a reduction of the period during which unpublished works in archival repositories will enjoy copyright protection.

Thanks for whatever support you can provide in this effort to remove features of the copyright amendment bill that will inhibit archival research in Canada.