WILL IT BE ILLEGAL TO PHOTOCOPY ARCHIVAL DOCUMENTS?

by Jim Bowman

Canada's Copyright Act, much of which has remained unchanged since 1924, is notoriously outmoded and inapplicable to present-day technologies. Various attempts to develop a modern revised Act have been made since 1957, but have floundered, as Parliament continues to give priority to legislation that is more urgent and more high-profile.

Because it is so outdated, the Copyright Act has been interpreted in a patchwork manner that has some odd implications for archives. Published "literary works", which include published directories and lists, "dramatic" films, and probably machine-readable published texts, are protected by copyright for 50 years after publication. Photographs, sound recordings, and non-dramatic moving images are protected for 50 years after they are created. Unpublished "literary works", however, remain protected by copyright legislation until 50 years after they are published. In other words, unless permission is received from the creator of a "literary work", or unless it has been published with permission, it can never be reproduced!

Technically, it's illegal to photocopy any unpublished archival textual material! But don't worry. It's unlikely that the Copyright Police will arrest you for making a copy of a page of the 1901 Census for a genealogist. The Common Law concept of "fair dealing", though vaguely-defined in Canada, permits the production of a single photocopy for purposes of private study.

At the time of writing (December 1), a series of amendments to the Copyright Act, collectively known as Bill C-32, is undergoing study by the Standing Committee on Canadian Heritage of the House of Commons. The archival, academic, and genealogical communities had successfully lobbied to have the "fair dealing" concept entrenched as a series of exemptions in the new legislation. However, it appears that the Writers' Union of Canada, including the eloquent Margaret Atwood, have made a very forceful presentation to the committee to remove these exemptions from the legislation.

The Chair of the Copyright Committee of the Association of Canadian Archivists, Jean Dryden of Toronto, is presently conducting a vigorous and desperate letter- writing campaign to inform members of the Canadian Heritage Committee of the importance photocopying as an aspect of free access to archival works. She has even sent them a fax pointing out that Margaret Atwood herself used photocopied archival materials in the course of researching her award-winning novel Alias Grace!

We in the archival community are fortunate to have such an informed and on-the- ball spokesperson, but what will happen if the Writers' Union lobby prevails? It could result in a situation so bizarre that my best advice would be, "Use your common sense." In reality, it's unlikely that you'll be sued for making a photocopy, just as it's unlikely that you'll be sued by the Disney Corporation for wearing a Mountie costume at a Halloween party. Isn't it?

We'd love to hear from you. You can e-mail your comments to the editor, Jim Bowman, at jbowman@cadvision.com