COPYRIGHT AND ARCHIVAL MATERIALS

by Mary Bridson

from ANLA Bulletin [Association of Newfoundland and Labrador Archives], Winter-Spring 1997

On February 5, 1997, [Memorial University of Newfoundland] University Librarian Richard Ellis spoke to a mixed audience of librarians and archivists on the issue of copyright and unpublished material. Bill C-32 was before Parliament awaiting third reading after various amendments, and if it became law it would bring unpublished material under specific copyright regulations.

Three years ago Mr. Ellis and Grace Hyam (of the National Archives of Canada) gave a similar presentation on the copyright rules that were then in place, following the amendments of Bill C-60 in 1988. At that time the rights of the creators were the primary concern, and the rules governing user/researcher rights and unpublished material remained a grey area. This is the area that is now under intense scrutiny, and has caused much anxiety among archivists and researchers, particularly genealogists and students, who rely on old letters, journals, etc. for detailed information, and cannot afford to travel extensively to inspect the original documents.

Mr. Ellis began with a quick history of copyright law under British jurisdiction. Originally the advantage was with those who obtained the privilege of royal authority to print material, which by the 17th century had evolved into licences issued by H.M. Stationery Office to printers, and particularly to the Stationers' Company. Printers/booksellers protected their investment, and the government had some censorship control. The creator/author, however, was not protected until 1710, when the rights of authorship were first recognized. In 1911 a British statute associated the term of copyright with the life of the author. In Canada it was not until 1924 that this concept was incorporated into law.

In Europe the Berne Convention of 1886 was much more protective of authors' rights, and countries which meet the standards laid down in this or its subsequent revisions extend similar protection to authors from all signatory countries. Canada is a member at the 1971 level, and is also a signatory of the less demanding Universal Copyright convention which has a broader membership.

The Liberal government policy paper From Gutenberg to Telidon (1984) was intended to strike a balance between creators' rights and users' rights, similar to that achieved in Australia and the U.S. However, a change of government altered policy, and the 1988 amendments dealt strongly with creator rights, leaving user rights unresolved. Bill C-32 was the promised follow-up to C-60 to address the balance.

When Bill C-32 was drafted, perpetual copyright existed over unpublished material. There were two concepts involved here, however. Some material was considered to fall within the public domain: copyright of manuscripts of previously published works expired with that of the published work, and of photographs, 50 years from creation. Otherwise substantial copying could not be made of a work without copyright permission. It was not at all clear what constituted either "substantial copying" or "a work". Was one letter a work? A ledger? A series of letters or ledgers? It was at the archivist's discretion, and at most issues were resolved without much stir when everyone acted in a reasonable fashion.

If Bill C-32 passes as it stands now, with the recommendations of the Standing Committee of Canadian Heritage, there will be more material eventually reaching the public domain. Works of an author who died more than 50 years ago will be public domain 5 years after the implementation of the new Act. Works of an author who died within 50 years of the Act will have copyright protection for another 50 years. Otherwise, copyright will be the same for published and unpublished works, i.e., 50 years from the death of the creator. For photographs, this may extend copyright protection, which will last 50 years from the death of the creator, rather than from the date of creation.

There is provision for copying any material for maintenance or preservation purposes, and both archivists and researchers have lobbied for a simple exception in the Act to allow single copies of works for non-profit research and private study. However, the current clause is quite complex, and could cause administrative headaches and delays in the short term.

For new material coming into an archives, it is simply a matter of informing the donor and getting a copyright waiver for preservation and research copying purposes, if they are willing. If they refuse, then the matter is at least resolved. For material already in an archives which has not been through this process, and which is not yet in public domain, permission of the copyright holder will have to be obtained to make any copies. If the copyright holder cannot be located, notice of copying will have to be registered with the Copyright Board. If your archives has a well-used collection of letters, diaries, or photographs, you will understand the concern of the lobby groups, particularly if the provenance of many is unknown.

Other issues that have been raised include the possibility of an international treaty on the copyright of databases. The World's Intellectual Property Organization (WIPO) is lobbying for this, but many users of the Information Highway feel existing copyright law is sufficient protection for creators. The matter is stalled at the moment while the U.S. Patent Office engages in a power struggle with the Library of Congress over the definition of copyright.

There are problems of definition connected with electronic media. Downloading a document from an Internet browser is definitely making a copy, but is simply reading it on your screen? If your computer is actually transferring information to its hard disk to do this, then probably it is. Should a tariff be charged? Are licensing provisions needed, where you have to pay for a password to go beyond a certain level? There is a need to define certain electronic copying as similar to photocopying, for example, fax transmissions and scanners, where the intermediary copy is destroyed. Putting material on a web site, however, probably constitutes publishing. Archivists should be aware of this as they are tempted to advertise and disseminate information about their holdings through this medium. Some legal advice might be a good idea before scanning a whole lot of archival material.

By the way, an item that appeared on the arcan-l listserv on March 13, 1997, gives food for thought. A group of computer scientists in California is now archiving the entire on-line exchange of information, at the rate of half a gigabyte a day. Copyright specialists and privacy advocates are concerned, but the chief curator, Brewster Kahle, says it is a simple matter to protect material from his robot collector. Maybe Star Trek's omniscient computer archive is not so far distant....