CANADIAN COPYRIGHT LEGISLATIONANDARCHIVAL MATERIALByCHRISTINA RUTH ANDREWSB.A., The University of Minnesota at Minneapolis, 1984M.A., The University of British Columbia, 1988A THESIS SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF ARCHIVAL STUDIESinTHE FACULTY OF ARTS(School of Library, Archival, and Information Studies)We accept this thesis as conformingto the required standardTHE UNIVERSITY OF BRITISH COLUMBIAFEBRUARY 21, 1992© Christina Ruth Andrews, 1992Department of^School of Library and Information StudiesThe University of British ColumbiaVancouver, CanadaIn presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia, I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed without my writtenpermission.(Signature)Date Mar 21/92DE-6 (2/88)TABLE OF CONTENTSAbstractAcknowledgementsIntroduction^ 1Chapter One: Early British Legislation^ 10Chapter Two: Early Canadian Legislation 29Chapter Three: Current Canadian Legislation^63Chapter Four: Towards A New Act: Some Considerations^125Appendix One: Archivists: What Do We Do Now?^139Appendix Two: Current Developments^ 148Bibliography^ 152ABSTRACTThis thesis analyses the nature and common law history of copyright, highlightsthe problematic aspects of the current Canadian legislation with respect to archivalmaterial, proposes revisions to the law which would take into account the specialnature of this material, and provides some suggestions to archivists who have todeal with the copyright dilemmas encountered in the daily, routine administrationof an archival institution. Copyright legislation has traditionally grouped archivaland library material under one section on special exemptions, notwithstanding thefact that archival material has characteristics which dictate a treatmentfundamentally different from that of library material. Therefore, this thesisfocuses on copyright as it relates specifically to archival material in order topresent recommendations for its adequate treatment under the copyright law. Thisis not a legal paper, and does not presume to give an exhaustive legal study of allof the ramifications of copyright legislation. It is intended as a review of thosecopyright issues which are of special interest to archivists.Because Canada derives its common law tradition from Great Britain and is ofteninfluenced by American legislation, the earlier British legislation and more recentcopyright legislation in the United States and Great Britain are studied andcompared to the present Canadian legislation. Because legal trends generally firstappear in court decisions before they become codified in statute, decisions foundin recent case law, as well as their discussion in current legal literature areexamined. The official recommendations which have been made to the Canadiangovernment for the revision of copyright law are also analyzed.It is concluded that the Canadian statute must be revised to reflect the uniquenature of archival material. Archival documents are not created for sale,distribution, display, or publication. They are the instruments of transactions,natural by-products of practical activities, means to purposes; they lack theautonomy of final products, and are non-commercial by nature. This thesisrecommends that a separate piece of copyright legislation for archival material beintroduced to deal effectively with these unique characteristics.i i iACKNOWLEDGEMENTSI am greatly indebted to my original committee members, Luciana Duranti,Richard Hopkins, Norman Prelypchan, and Basil Stuart-Stubbs (who later retired).Without their constant encouragement, friendly support and thoughtful advice thisthesis might never have been completed. I must also thank Terry Eastwood, MarySue Stephenson, and Ronald Hagler for helping to contribute to my basicknowledge about archives and information systems, as well as Marcel Caya, GregBrown, Nancy Marrelli, and Shirley Spragge for consenting to be interviewedabout copyright.INTRODUCTIONProperty rights are found in some of the oldest legislation in the English speakingworld. Infringement of property rights, or trespass, is among the most widelyunderstood legal concepts. Copyright is also a property right-- albeit a moremodern one. The term copyright is used to describe the right held by an author toprotect his or her work from unlawful copying by others. Copyright is a legalright to protect one's intellectual property from economic exploitation by othersand as such is similar to other property rights.But copyright is also distinct from other property rights. It is 'sui generis' or in aclass of its own because it is a property right which is subject to expiration after acertain designated term. It is also subject to other restrictions such as thedefinition of what type of works are eligible for copyright protection and thedetermination of who owns those rights (it is not always the physical creator of thework.)Jeremy Phillips, a noted British copyright scholar, states that "intellectual propertyis the Carmen of commercial law; it is a subject with charm, personality, and aforce of character, attributes which are more tellingly depicted by theimpressionistic strokes of the artist's brush than by anatomical dissection."1Copyright, notwithstanding all its charm and personality, is primarilyeconomically based. It was created to protect authors from the exploitation oftheir work by others who could simply copy the work and use it for their owneconomic or moral gain, without any expenditure or effort other than the relativelyinexpensive cost of paper and ink. In protecting authors, copyright legislation1Jeremy Phillips, An Introduction to Intellectual Property Law (London: Butterworths, 1986), v.1strives to foster a nation-wide climate of intellectual productivity andinventiveness.Phillips states that "intellectual property law plays a vital part in the physical well-being of the individual, and in the commercial vitality of the economy. For it is animportant function of intellectual property law that it stimulate. . . the creation ofideas and inventions, their disclosure for the benefit of all. . . and theircommercial exploitation so as to facilitate the greatest potential exploitation oftheir practical or concrete embodiments."2The economic motivation behind copyright is no less strong today than it waswhen first embodied in statute over two hundred years ago. In 1971, the copyrightindustry accounted for 2.1% of Canada's gross national product, or 1.7 billiondollars. By 1984 this had grown to 8 billion dollars.3 The income generated bycopyrighted works in the computer industry, in particular, is an increasinglyimportant figure in the economy of many developed countries (in 1989 the UnitedStates spent one hundred billion dollars on non-defense research and development-- much of it going to high technology industries4). Because of this, the protectionof intellectual property and inventions through the legislative umbrella ofcopyright, patents and trademarks has become increasingly important. Theeconomic consequences of revising any copyright legislation can be enormous.2Ibid., 7.3A.A. Keyes and C. Brunet, Copyright in Canada: Proposals for a Revision of the Law (Ottawa:Consumer and Corporate Affairs Canada, 1977), and Canada, Department of Consumer and CorporateAffairs, From Gutenberg to Telidon: A White Paper on Copyright (hereafter The White Paper) (Ottawa:1984), 2.4Brian Dumaine, "Closing the Innovation Gap," Fortune (December 2, 1991): 56.2In addition to protecting an author's often prodigious economic returns fromintellectual property, copyright has the added task of stimulating the culturalgrowth of a country by allowing for a relatively unimpeded flow of information.Copyright legislation must navigate a narrow passage between the economicprotection of an author's investment and the free dissemination of information forthe cultural or intellectual enrichment of society. In order for ideas to develop,they must be shared, reviewed, and discussed. Too much protection could lead toa stagnant society with little intellectual, cultural or economic growth. Copyrightlegislation strives to accommodate these two opposing needs at the same time:protection of an author's investment in his or her work and the publicdissemination of knowledge.In an attempt to accommodate these two opposing needs, Canada has issued onlytwo pieces of legislation, the 1921 Copyright Act and Bill C-60, a partial revisionto the Act, which was passed in 1988. In contrast to this copyright legislation inGreat Britain has had a long and colorful history-- over thirty pieces of legislationdeal with copyright since its first embodiment in a statute in 1710. For over twohundred years, British parliament has struggled to create laws that reflect thevalues and economies of its contemporary society. Canadian legislation, however,has yet to fully embrace all of the issues and problems of intellectual propertyrights of the late twentieth century.One of the largest gaps in the present Canadian legislation is the lack of anyspecific and unified treatment of archival material. The present government hasstated that the long overdue supplement to Bill C-60 will contain substantialrevisions of the treatment of archival materia1.5 It can only be hoped that the35Grace Hyam, "Copyright Revision: Awaiting the Second Stage," Archivaria 27 (Winter 1988-89): 175.legislators will respond to the special needs of the archival community inpreparing this very important piece of legislation.The current Canadian statute defines copyright as the "sole right to produce orreproduce the work, or any substantial part thereof, in any material formwhatever."6 This includes reproduction by hand copying, photocopying, ortransferring the work into another medium (e.g., photographing a painting,sketching a photograph, inputting a textual work onto a computer disk.)Copyright can therefore greatly narrow the potential use of archival material--material which can often be preserved or used only by copying or transferring it toanother medium.An additional problem is the term of protection for unpublished works. This isdefined by statute as extending from the date of publication of the work plus fiftyyears.7 Since most archival documents are never published this creates a term ofperpetual protection, thus remarkably limiting the free flow of information that isessential to research, and to the development and the cultural enrichment ofsociety--one of the statute's intended objectives.Because the ultimate purpose of most archives8 is to achieve widespread publicdissemination of the information found in their holdings, the restrictions imposedby copyright have long constituted a fundamental problem for the administrationof reference and use. In institutions such as these, the essential tension is greatly6Revised Statutes of Canada, 1921, c. 30 (hereafter Copyright Act 19211s. 3(1).7Copyright Act 1921, s. 7.8The term archives has been translated into English as a homonym. It is used to describe both theinstitution which houses archival material and the material itself. See Frank Evans, Donald Harrison, andEdwin Thompson, "A Basic Glossary for Archivists, Manuscript Curators, and Records Managers," TIN.American Archivist 37 (July 1974): 415.4magnified between the owners of copyright, who can create enormous economicreturns by carefully controlling the distribution of the works they own, and thegeneral public, who in the information age of the late twentieth century demandimmediate and accurate copies of works. Archivists have become the mediatorsbetween public dissemination and the protection of an author's rights.The inadequacies of the current legislation in dealing with archival material havenot gone unnoticed by the archival community. There have been numerousrequests that revision of the statute should take into consideration the specialnature of archival material, which is composed primarily of unpublished works byeither unlocateable or unknown authors. The Association of Canadian Archivists(ACA) has submitted several briefs to the government, advising it of the specialcharacteristics of archival material and suggesting that archives require specificexemptions from the present legislation in order that archivists may make theirholdings fully available to the public.9 Representatives of both the ACA and theAssociation des archivists du Quebec (AAQ) have testified before theSubcommittee on the Revision of Copyright in an attempt to make the legislatorsaware of the unique nature of archival material.This is a delicate moment in the history of copyright legislation in Canada. Asinformation increasingly becomes a commodity in its own right there is addedpressure on the government to revise the now outdated statute of 1921. The timehas come for archivists to educate themselves about copyright legislation andlobby the government with proposals for a revision which will best suit the needsof both authors and users of archival material.9See Corrado Santoro, "The Association of Canadian Archivists and Copyright Revision: An Update,"Archivaria 21 (Winter 1985-86): 111-135.5The purpose of this thesis is to introduce and explain the nature and common lawhistory of copyright, to highlight inadequacies in the current legislation, tosuggest revisions to the law which would take into account the special nature ofarchival material, and finally, to provide practical suggestions for archivists whohave to deal with copyright dilemmas encountered in the daily, routineadministration of an archival institution.The statutes and case law of other common law countries are analyzed, withemphasis given to the United States and Great Britain, the mother of both thecommon law tradition and the earliest notions of an author's right to copy.Comments made by copyright scholars and archivists regarding judicial decisionsare also examined.Although the legislation in common law countries has continually groupedarchival and library material under one section on special exemptions, this thesisfocuses on the unique characteristics of archival material. Archives are defined asthose documents which are "created or received by a physical or juridical personin the course of a practical activity."10 Archives are the documents (in anymedium) which result from the actions and transaction of daily life. They are notcollections of idiosyncratic, unique items and are not created for dissemination orpublication. They are instead organic, natural acculmulations of documentsinterrelated by the procedures and processes through which business or personalaffairs are conducted.11lkuciana Duranti, "Diplomatics: New Uses For and Old Science (Part I)," Archivaria 30 (Summer1990): 15-16.611For a thorough discussion of the nature of archival records, see Victoria Blinkhorn, "Appraising Artists'Records" (Master of Archival Studies Thesis, University of British Columbia, 1988), 10-25.Archives came together by a natural process-- like Topsy, theygrowed. They were not singled out for preservation (herein lies theirdistinction from the pieces in a Museum Collection) on account oftheir believed value for esthetic, historical or any other purposes. . . .They are there: a physical part of the facts which has happened tosurvive.12Museum pieces and library materials (eg. books, journals) are very different.They are created as single works able to stand alone, separate from the author'sother creations. Moreover, they are usually created for commercial purposeswhile archival material is never produced to be sold. It may happen that somearchival documents, when inactive, acquire commercial value, but this is not aconsequence of their nature and is actually totally independent of it. For example,a document may acquire value in the marketplace because of its seal, signature, orillumination, however, these items were not included in the document in order thatit might acquire commercial value, but instead for administrative and legalpurposes required by the routine of the creating office or person; and if adocument acquires commercial value for its content, such content was included inthe document for communicative purposes necessary to the course of activities andtransactions and was never meant to be commercially exploited.13 Becausearchives, library, and museum items are so very dissimilar due to the disparateprocesses which lead to their creation, this thesis concludes that archival materialshould receive separate treatment under the legislation. Therefore, onlyrecommendations which are related to archival material will be presented here.12Hilary Jenkinson, "Reflection of an Archivist," A Modern Archives Reader ed. Maygene Daniels andTimothy Walch (Washington D.C: National Archives and Records Service, 1984), 19.13Giorgio Cencetti, "Sull' Archivio come 'universitas rerum'," in Cencetti, Scritti Archivistici (II Centrodi Ricerea Editore: Roma, 1970), 50.7Because Canada derives its common law tradition from England, the earliestgerms of common law copyright are found in sixteenth century English case law.In order to more fully understand the original nature and intent of the legalconcepts behind copyright this thesis begins with a discussion of the early Englishcases and statutes whiCh deal with the right to copy. The first chapter reviews thedevelopment of copyright in England from its beginnings in the fifteenth centuryup to its first embodiment in legislation in 1710, and concludes with a briefcomparison to the philosophy of copyright which is held by European countries.In order to provide an understanding of how the British legislation has beeninterpreted and used in Canada, the second Chapter reviews the Canadiancopyright legislation of 1841, 1889, 1921, 1987, and discusses the variousreactions of contemporary scholars and authors.The third Chapter analyzes in detail and suggests solutions to the problems andissues in the current legislation which are of particular interest to archivists:copying for preservation and security, the testamentary disposition of rights, theterm for unpublished works, crown copyright, the ownership and term ofcopyright in photographs, copyright in works for hire, and fair dealing.In providing suggestions for revision to the Canadian statute this Chapter analyzesthe current trends in copyright found in the decisions in recent Canadian,American and English case law. Legal reviews which discuss the judicialdecisions, and archival literature which addresses the particular need of archivistsare also examined.The fourth Chapter makes recommendations for changes to the law which moreeffectively take into account the special nature of archival material, suggesting8that the majority of it be exempt from copyright protection. This chapterexamines the distinction between archival material and literary and artistic works.Definitions provided by diplomatics, a four hundred year old science whichexamines the origin and purpose of records, are used to elucidate the differencesbetween works which are the result of transactions (archives) and those which areproduced as either an end product or as the expression of personal thoughts andideas (literary and artistic works). Because archives are the unique residue oftransactions and were never produced with the intent of dissemination it isconcluded that copyright protection is irrelevant to the majority of archival works,the only exceptions being personal papers and those works which were created asend products such as reports or briefs.Appendix One provides practical suggestions to archivists and librarians who mustdeal with donors and users of copyrighted material under the current legislation. Italso includes excerpts from various liability forms which can help protect thearchives against misunderstandings and possibly help to prevent litigation.Appendix Two reviews the most current activities in copyright revision as pursuedby the ACA, the AAQ and the Society of American Archivists (SAA).9CHAPTER ONE: EARLY BRITISH LEGISLATIONIn the time of Henry II of England (1154-89) books were published by "havingthem read over three days successively before the University or other judgesappointed by the public; and if they met with approbation, copies of them werethen permitted to be taken, which were usually done be monks, scribes, illuminors,and readers trained up to that purpose." 14During this time period there was no notion of an exclusive right to copy a work.Copying books by hand was a laborious and time consuming task which requiredthe employment of a highly trained scribe or monk. "Authors could have nomonopoly after publication [an oral act] . . . public utility, as well as the nature ofthe thing, must have rejected any such pretense."15The Anglo-Saxon notion of an individual's exclusive right to copy a written workhas its roots in fifteenth century Britain and the invention of the printing press.The printing press was introduced by Caxton into England in the middle of thefifteenth century and, at first, printing was seen as "only a more expeditiousmethod of copying. The first printers, both in England and in Scotland,considered it in this light and printed every book that came their way, without anynotion of being restrained, whether by literary property or by any otherconsideration."16"Hay- Campbell, "Information for Alexander Donaldson and John Wood, Booksellers in London . . . ,"The Literary Property Debate: Six Tracts 1764-1774, The English Book Trade: 1660-1853, ed. StephenParks (New York: Garland Publishing Inc., 1975), 27.10151bid.11Quite rapidly, however, the Crown began to see the advantages it could obtain bycontrolling the printing trade."Caxton founded his press in Westminster in 1476, and soonafterward the Crown began to take an acute interest in thisdangerous art and to assert prerogative rights regarding it. A Royalprinter appeared in 1485, and from 1518 onward came a stream ofroyal grants of privileges and patents for the exclusive printing ofparticular books or books of stated kinds. "17This right to print or copy a book was limited in the extreme. Only thosestationers with a royal grant or patent were allowed to print books for the public.As long as the Crown could oversee those who were given the royal patents itcould control the entire book trade. However, problems gradually developed inoutlying districts, particularly in Scotland and Ireland where the power of theCrown diminished with the increased distance from Court.18 The Crownretaliated with a powerful weapon, a group of English tradesman united under onecause-- the desire to secure and defend the highly lucrative rights to print all of thebooks and pamphlets in the country. Roughly seventy years after theestablishment of the first royal printer, the system of individual patents andlicenses evolved into a more general Royal permission granted to a specific groupof tradesmen. Enforcing the exclusive grants and patents had proved too difficultfor the Crown. By enlisting an entire group of tradesmen with the right to copy,17Benjamin Kaplan, An Unhurried View of Copyright (New York and London: Columbia UniversityPress, 1967), 2.18This rebellion increased until in the 1600's the Scottish and Irish printers were blatantly disobeying thelaw and publishing and selling books and pamphlets which were printed without Royal approval. SeeThe Literary Property Debate: Six Tracts 1764-1774.the Crown had a powerful ally on its side when it needed to invoke the terms andconditions of the printing licenses."When Queen Mary chartered the stationers by letters patent of 4May 1557, the fellowship, in exchange for the large trade advantagesthey then secured, undertook to become in practical effectsompnours and pursuivants of the royal censorship, to play the partof 'literary constables'. Printing was confined to the members of theStationers' Company and others as might be authorized by theQueen."19Perhaps the most significant influence on the development of copyright was theReformation. The vicious and often bloody conflict between the new religion,Protestantism, and the old religion, Catholicism, had its beginnings early in thesixteenth century. By the middle of the century, the English Crown desperatelyrequired some method to abate the flow of the Protestantism which was spreadingquickly due to the speedy and efficient printing press. Copyright became apowerful tool of censorship in the hands of the Crown.A noted copyright historian, Harry Ransom, writes that:"At first the Church favored the development of the press . . . itemphasized the desirability of cheap printing and the consequentwide distribution of literature. The Reformation discouraged thatpolicy by inspiring a literature for which the Church did not approvewide distribution. . . religion was a fertile field for the growth ofprinted literature."2019ibid., 3.1220Harry Ransom, The First Copyright Statute: An Essay on An Act for the Encouragement of Learning,1710 (Austin: University of Texas Press, 1956), 22.13The Church and the monarch controlled the distribution and dissemination ofreligious ideas by controlling the company of stationers. The establishment ofprinting in the hands of a limited company of tradesmen, the stationers, "wasentirely agreeable to the spirit of the established religion of those times, averse tofree enquiry, and having no other means left of opposing the Reformation than byobstructing the progress of knowledge and true literature, then fast gaining groundby means of the invention of printing."21 The exclusive right to print a book(either new or old) was obtained by filing an entry in the official Company ofStationers Registry. No other printer or stationer could then legally print, copy orsell that book anywhere else in England, Scotland or Ireland.There were also two other arguments in favor of an exclusive right to copy beingvested in the stationers: no harm to the general public would be incurred sincebooks were a luxury, only to be bought by the wealthy; and an exclusive right toprinting insured the steady and constant flow of business in England. As Ransomwrites:"Books were not staple commodities but 'rarities' for which few menspent more than they spent on superfluous wants; therefore propertyrights in books was not against the public interest, as a monopoly instaple commodities would have been. The second argument wasthat a protected property right guaranteed a prosperous trade, aplentiful supply of cheap books, and orderly printing; whereas lackof protection roused confusion and hampered business."22In tracing the development of English copyright it is important to note that theseroyal grants and privileges were created to provide economic protection for the21Camp1e1l, 28.22Ransom, 70.14printers and political protection for the Crown. They "do not . . . stand on anynotion of original composition for they might be granted for ancient as well asnew works."23 The Royal grants in effect created publishing monopolies. In fact,they bore a far greater resemblance to the prescripts of a government censorshippolicy rather than any lofty notion of creator's rights and protection of artisticendeavor. Indeed contrary to any notion of author's rights, the Act of Queen Maryactually inhibits individual creativity by "striking against author as much asagainst other, and, paying no regard to literary property, prohibits them from evenpublishing their own works without license."24 In fact the licenses were never"granted to authors, to prompt them to write, but to printers and publishers toinduce them to make correct and useful editions of books which lay inmanuscript."25What later came to be known as copyright was at this stage an exclusive legalright held by publishers and stationers to copy, print or sell a written work eithernew or ancient. Authors lost all rights to a work when they sold it to a printer.They had no control over the format of the material, its subsequent reprinting, orany editorial comments the publisher wished to add to increase its marketability.In fact there is a possibility that the printer added a great deal of material to amanuscript work in his capacity as printer, typesetter, and editor. "It was clearthat book property arose from two distinct acts of creation-- the author's23Kap1an, 4.24Campbe11, 28.25Ibid., 32.composition and the printer's reproduction of the text. . . the printer might beresponsible for the literary integrity and quality of text."26The right to copy a printed book thus increasingly became the property of theprinter, the producer of the final, saleable product, and not of the author, whomerely provided the raw material."Right of copy was the stationer's and not the author's. Increasingly. . . manuscripts had to be purchased in a business way . . . but uponentry (the registration of the stationer's publications) the authordropped away and it was the stationer who had the right ofmultiplication of copies against others of the Company (ofstationers)."27This system gradually decayed over the ensuing years due to "the general disgustat the variable stupidity of the censors," and the increasing difficulty of enforcingthe licenses in Scotland and Ireland.28 The creation of the monopolies in someinstances had led to an abrupt decrease in the quality of the books being published."Nothing came from the Royal Press (as the licensee vainly termed it) but the mostillegible and uncorrect (sic) bibles and books that ever were printed in any oneplace in the world. Nothing was studied but the gaining of money by printing."29A powerful minority of stationers had "managed to usurp general assignment tothe Company [as] .. . more and more privileges fell into their possession."30 The26Ransom 28.271(aplan, 3.28ibid., 6.29Campbe11, 32.1530Ransom, 54.book trade had also grown a great deal in the previous 100 years and there wasnow increased hostility on the part of other minor printers and stationers.Milton Friedman, a noted scholar of economics, theorizes that the abolition of theroyal licenses was an inevitable step in the movement of society towardsdemocracy. He writes that "the overthrow of the medieval guild system was anindispensable early step in the rise of freedom in the Western world. It was a signof the triumph of liberal ideas."31 The abrogation of royal printing licenses wasindeed an integral step away from the suffocating censorship of the crown towardsa free, democratic society.In 1695, this system of printing grants and licenses, which had begun in 1518 andculminated in the Printing Act of 1662, expired through nonrenewal. Thestationers, who had for centuries been fully protected by the government, soughtrelief from the possibility of free competition. They "came up to Parliament inthe form of petitioners, with tears in their eyes, hopeless and forlorn; they broughtwith them their wives and children to excite compassion, and induce Parliament togrant them a statutory security."32In response to this emotional and persuasive campaign, the Statute of Anne waspassed in 1710 which protected existing books for a period of 21 years and newbooks yet to be published for a period of fourteen years from the date ofpublication, with the provision of an extension for another fourteen years upon thediscretion of the author. However, Kaplan suggests that we should not be lead31Mi1ton Friedman, Capitalism and Freedom (Chicago: University of Chicago Press, 1962), 137.321Caplan, 7.1617astray by this apparent concern for authors. "It is hard to know how far theinterests of authors were considered in distinction from publishers. I think itnearer the truth to say that publishers saw the tactical advantage of putting forwardauthors' interests together with their own, and this tactic produced some effect onthe tone of the statute."33It was noted by one contemporary that "the claim of literary property is almostentirely confined to a particular society-- the booksellers of London."34 In fact,the literary property debates that ensued after the statute of Queen Anne waspassed were conducted entirely by publishers (although authors are occasionallymentioned, it appears that they took no part in the debates).The statute was for the most part considered fair "by this equitable rule, thelegislature has secured to every author, who chuses [sic] to take advantage thereof,such reasonable profit as was deemed to be a suitable recompense for his labourand trouble; and has at the same time, guarded against the bad consequenceswhich must have arisen from a perpetual monopoly."35However, the statute did not pass entirely without criticism and there was somediscussion that it should be repealed.36 A minority of publishers argued that thepreviously existing monopolies had created perpetual copyright at common law.Other publishers argued that all previously published books had entered the public33Ibid., 8.34Campbell, 15.35Ibid., 9.36Ibid., 61.18domain and were free to be reprinted by anyone who cared to invest the capital inthem.37This was a very contentious issue, and here we see the beginnings of what hassince become a long standing debate about when a work is considered to enter intothe public domain and, consequently, whether any copyright should be allowed toexist in perpetuity.One noted intellectual of the eighteenth century argued against perpetual copyrightby reasoning that "it is impossible to suppose the legislature could intend soabsurd a thing, as to grant the sole privilege of printing or disposing of any bookto the author, for a limited number of years, if, independently of such grant and dejure, the full property was vested in the author to perpetuity."38 However, otherscholars argued vehemently that a man's literary property was no different fromother real property such as land, grain, and cattle. "If a man's ideas are his own . .• it would surely be very hard to be deprived of all right to them, the moment heturns them to any profit to himself or others (i.e. publication); as unreasonable asif the farmer were allowed a property in his corn and grass while growing in hisfield but denied it whenever he brings them to market."39It was argued that literary property was the same as all other personal propertyand, because of this, the rights to publish or reprint it should exist as long as thephysical entity, the book, existed. The flaw in this argument is twofold. Firstly,37Ibid.38thid. 9.39Literary Property Debates: 1774-75, 27.literary property is not just another type of real property like land, cattle, andcrops. Literary property has no discrete physical presence like a plot of land or abushel of grain. It has its foundation in knowledge and ideas and is the uniqueembodiment of those ideas. As a result of this, it can be easily copied andreproduced with a minimum amount of labor. The copy can then easily pass forthe original and be sold as the original. This is not usually true for real property.It is this fundamentally physical difference between real and intellectual propertythat created the need for copyright protection in the first place.Secondly, as a result of the incorporeal nature of intellectual property, copyrightworks and inventions are valuable, both financially and culturally, only when theyare communicated. They create value for all of society, not just for the owner ofthe work, for it is through the open communication of scientific theories, facts andideas that society as a whole develops and grows.This benefit which accrues to all of society creates an overwhelming need to allowintellectual property to pass at some point into the public domain.Real property, such as land and crops is usually valuable only to its owner anddoes not need to be shared or communicated in order to establish and multiply itsvalue.However, the ownership of real property does have some similarities to theownership of intellectual property and involves the balancing of the rights ofindividuals against the rights of society as a whole, which is central to anydiscussion of intellectual property. There are cases involving real property ownedby individual citizens, where the needs of the general public may overrideindividual property rights just as they do in intellectual property. These situations1920determine government actions such as replevin (a government takes re-possessionof public property, generally artifacts, which are in the hands of private persons),expropriation (a government takes possession of private, real property for publicuse), and escheat (land reverts to the government when there are no heirs).Society as a whole does not derive direct benefit from the real property which isowned by individuals, such as discrete bundles of land, cattle or crops. Realproperty does not grow or develop as a result of increased exposure to the public.However, the opposite is true for intellectual property. It is generally the case thatideas, theories and artistic works, when communicated and discussed, stimulatemore ideas, theories and artistic works, thereby increasing the development andcontinued growth of a society.It was this overwhelming concern for the increased development and intellectualgrowth of society that ultimately saw the demise of perpetual copyright inEngland. After many years of public debate it became widely accepted in Englandand its colonies that copyright in published works should exist for a limited periodof time.40 The author or publisher would be allowed to reap the benefits of hiswork for a determined period, then the work would become part of the publicdomain and could be used by anyone who chose to reprint it.W. Kenrick, in an application to the English Parliament, recognized the overridingconcerns of society and the need for a limited term of copyright protection. Hisapplication stated that "it is vain for individuals to talk of possessing a property . .40In Canada, copyright exists in perpetuity in unpublished works. This is generally recognized as asection of the statute that requires extensive revision. This topic will be addressed more fully in ChapterThree.21• or to contend of such possession, if it militates against the general interests ofSociety."41 During this same time period, a Scottish printer and bookseller, A.Donaldson, argued that "it is impossible to deny that a suitable encouragement isdue to the author of every useful book. . . but from thence to pretend, that theauthor of every book has tie jure an original inherent property therein, even afterpublication, and that none can reprint the same without being guilty of an invasionof the author's property, does not seem to have a proper foundation in any knownprinciple of law or justice. How detrimental this would be to the advancement oflearning."42This concern for the advancement of learning was also echoed in the House ofLords. One member wrote that "if there is anything in the world common to allmankind, science and learning are in their nature publieijuris; and they ought to beas free and general as air and water." However, he also recognized the need tobalance the public right to knowledge against the author's right to economicprotection. He went on to state that "those high gifts of genius and judgement . . .if they are properly exerted for the service of mankind, deserve the respect, thecare and the attention of society."43This was the foundation for the copyright legislation of 1710. It was deemed thata period of twenty-eight years was sufficient time to allow an author to receive asatisfactory economic return for his labours. Twenty-eight years after initialpublication the work entered the public domain and was available to all citizens to41W. Kenrick, "An Address to the Artists and Manufacturers of Great Britain," The Literary PropertyDebates: 1774-1775, 3.42Campbell, 7.43Ibid., 29.22copy, quote, or reprint. The Statute of Anne did not, however, explicitly statewhat rights were covered under the legislation. Copyright is strictly defined for thefirst time in 1769, when Lord Mansfield, Chief Justice of King's Bench, wrote, inhis reasons for judgement in Miffar v. Taylor, that the right of copy was "anincorporeal right to the sole printing and publishing of somewhat intellectual,communicated by letters."44Copyright, at this stage in history, dealt only with the exact duplication of aprinted or manuscript work. "Copyright did not bar others from using it, still lessfrom dealing with the same subject matter, rather it barred them from reproducinga similar text."45 Imitation, translation, and abridgement were all deemedacceptable uses of copyrighted material in the eighteenth century. In fact, in thelate eighteenth century, imitation of classical works was seen as a virtue.We can see here the development of the modern concept that the ideas containedin a book cannot be copyrighted; only the unique physical embodiment orexpression of those ideas is protected by copyright. "A man who bought apublished work may improve upon it, imitate it, translate it; oppose its sentiments:but he buys no right to publish the identical work."46 A book could be abridged,imitated, translated and criticized without punishment. It simply could not becopied.44Kapian, 14.45thid.46Thid.23We can also recognize the similarity of these rules to the philosophy of "fairdealing" that is present in most modern Anglo-Saxon copyright legislation. TheCanadian Act states that "any fair dealing with any work for the purpose of privatestudy, research, criticism, review or newspaper summary" is not an infringementas long as it does not interfere with the economic exploitation of the work by thecopyright owner.47 These were also valid exemptions in the seventeenth andeighteenth century. In some cases, abridgements for the purpose of literary reviewwere considered necessary, provided that the abridgement did not interfere undulywith the sale of the original work.48Another aspect of modern day fair dealing is the reproduction of some works foreducational purposes which do not interfere with the financial profits of thecopyright owner. Again, we can see the early beginnings of this concept in thefollowing eighteenth century case.In Wilkins v. Akin, Lord Eldon discussed the hypothetical case of a man who, whilewriting a history about the mapping of England, reproduced maps published byanother. Eldon suggested that, if the reproduction were for the purpose of merelyillustrating the history, it might be permissible; whereas an obvious infringementof copyright would be the reproduction of the maps solely for profit. It isimportant to note the underlying concerns regarding the economic exploitation ofcopyrighted works, for herein lies the kernel of Anglo-Saxon thought onintellectual property. Legislation exists primarily to provide economic protectionfor those who have invested time or money in the creation of a work. Limited use47Copyright Act 1921, s. 27(2(a)).48Kap1an, 11.of intellectual property is allowed only if it does not constitute an economicinfringement upon the investment of the creator.Copyright legislation was created to protect the economic investment of those whohad created the final saleable product-- usually the stationers or publishers.Copyright was seen as an indemnity against the huge financial risks undertaken bypublishers.49 Publishing was not the healthy, thriving industry that it is today. Inorder to ensure the continued intellectual development of the population, thelegislation had to protect those people who at that time were the most influential inbringing the books to market-- the publishers and stationers. Authors were oftenprotected economically by the safety net of patronage, whereby a wealthyaristocrat (or bookseller) would support an artist in return for his or her artisticcreations. There was no recognized need to protect an author's rights to theintegrity of his or her work: copyright protected only the physical duplication of awork-- this was all publishers were interested in. After publication and transfer ofthe rights to the publisher the author lost any right to recall, modify or suppress thework.There was a lingering sense of publication as equal to the initiation of a work intothe public domain. The creator of a work "is the author of it, but not theproprietor; and as soon as he divulges it to the world, he gives up his words andthoughts to the public; he cannot possibly recall them, nor can he hinder anyperson from repeating and spreading them. "5049Campbell, 12.2450Ibid., 11.25There was also no recognized need to provide for the economic survival of authorsby investing them with the first right to publish works which had beencommissioned. It was assumed that publishers would pay the authors areasonable amount for the rights to their work but that the publishers wouldsustain an equal or greater financial loss in the preparation of the book forpublication and sale. The publisher was editor, copy corrector, type setter, printerand vendor.In fact, the British legislation shows a complete lack of emphasis on either thenotion of "author" or any standard definition of what is a "copyrightable work". Itappears to be concerned only with the physical copying of a work, new or old,which is done for economic gain. (It has been suggested that this is a very aptreflection of the British shopkeeper's mentality).In direct contrast to this is the European philosophy of intellectual property whichis outlined in the international treaty, the Berne Convention.51 Indeed, even theterms used in the treaty reveal a marked contrast between the two schools ofthought: the European droit dauteur versus the British 'copyright'. As the termsuggests, the European philosophy is heavily weighted towards the protection ofauthor's rights.Moral rights are an important past of the Roman Berne Convention (RBC). Theygrant the author continuing control over his or her work despite its exploitation byor sale to others.51This convention originaly was written in Paris, 1886. It has been revised several times: Berlin 1908,Rome 1928, Brussels 1948, Stockholm 1967, and Paris 1971. Canada currently subscribes to the Rome1928 treaty."The author alone decides when the work is ready for release andthe manner of its exploitation; the work must be properly credited;it must not be modified in a manner prejudicial to the author'soriginal intent ; the author may even be entitled to recall the work ifit no longer reflects his or her views; the author is front and centerstage; later exploiters and users of the work are secondary playersand stand in the wings."52This is in direct contrast to the early English legislation wherein the author gaveup all rights upon sale to a publisher.Although the RBC grants almost unlimited rights to an author, there are strictlimitations on the definitions of author and of eligible works. Primary to both ofthese is the notion of individual creativity. The RBC takes a relatively narrowview of who is eligible for authorship. Only physical persons can be consideredauthors. This rules out the possibility of droit d'auteur being initially held bycorporations, offices, governments, or legal partnerships, and therefore workscreated by these juridical persons cannot be protected under droit d'auteur unlessthere is a specific contract to the contrary.53 "Only [an] author's literary, artisticand related works are protected. Any work that is not produced by an author isoutside the ambit of the Convention."54The definition of author requires the exercise of creativity on his or her part. Inthe RBC, author means a person "who applies his or her personal creativity to52David Vaver, "Copyright in Foreign Works: Canada's International Obligations," The Canadian BarReview, 66 (1987): 82.53Ibid., 102.2654Ibid., 101.produce a literary or artistic work. . . performers, sound recorders, broadcasters,and the like are neither authors nor do they create literary and artistic works."55In contrast to this, the Anglo-Saxon tradition of copyright recognizes all juridicalpersons as eligible for copyright ownership. Originally the Crown or the royalprinter was the owner of all copyrights. In the eighteenth century, printing houses,rather than individual printers, could be the owners of copyright. In fact, aprovision was made in the Statute of Anne for printers to apply for the copyrightof classical works which had been written hundreds of years earlier. Clearly nonotion of author as the sole copyright owner ever existed in English legislation.The RBC also differs from Anglo-Saxon copyright in that the Convention severelyrestricts the type of works which are eligible for protection. A work must firstlybe produced by an author (as defined above) and secondly must exhibit creativeand original thought. The RBC "requires . . . intellectual creativity . . . as aprecondition to granting protection."56 If a work is not deemed to be creative it isnot protected. As stated in the RBC, "the work must be one produced by anauthor qua author, that is exercising the faculties of an author; [the word] 'work'itself implies some intellectual creativity."57 In fact, films "to which the authorhas not given an original character," and photographs are not categorized asliterary and artistic works by the RBC. They are instead classed as derivativeworks.58 Again, this is in direct contrast to the British legislation, which did not55Ibid., 103.56Ibid., 82.57Ibid., 92.58Ibid., 93.2728include any requirement whatsoever on the nature of the work. As outlined above,copyright licenses were granted for both new and previously published (and thusderivative) ancient books.Thus, we can see that the Anglo-Saxon philosophy, which developed as the resultof government censorship and economic pressures, is markedly different from theEuropean notion of droit d'auteur, which emphasizes author's rights and thenecessary element of creativity. The early English legislation makes no mentionof moral rights, the need for a work to embody original, creative thought, or therequirement that the owner of the copyright must be the author. The originalpetitioners for copyright legislation were booksellers and stationers. Theirconcerns were related to obtaining economic protection against the investmentsthey had made in bringing manuscripts to the market.English copyright is primarily "a vehicle to help propel works into the market: itis more an instrument of commerce than of culture", and in some ways is moresimilar to unfair competition legislation than it is to the European concept of droitdauteur.5959Ibid., 83.CHAPTER TWO: EARLY CANADIAN LEGISLATIONIn nineteenth century North America, publishers and authors were increasing at arapid rate, and the publishing industry was gradually becoming an importantsegment of the domestic economy. Although there were few Canadian authors atthe time, legislators felt it necessary to provide for the protection of both thefledgling publishing industry and those authors who would hopefully one daybecome important figures in the Canadian scene.In 1841, the Act for the Protection of Copy Rights was passed in the Province ofCanada. This act repealed the Lower Canada Act of 2 Will. 4 c.53 and unified thetreatment of copyright throughout the country. The Act provided copyrightprotection for:"Any person or persons resident in this Province, who shallbe the author of any book, map, chart of musical composition. . . or who shall invent, design etch, engrave, or cause to beengraved, etched or made from his own design any print orengraving . . . and the legal assigns of such persons. . shallhave the sole right and liberty of printing, reprinting,publishing and vending such book, map, chart, musicalcomposition, print, cut, or engraving."60The term of protection was twenty-eight years with a possible renewal of fourteenyears if the author was still alive or if, being dead, had left either a widow or achild.61 This is simply an extension of the earlier British Act, the 1710 Statute ofAnne, which provided for a term of protection of fourteen years which could be60Laws, Statutes etc., 4 & 5 Victoria, An Act for the Protection of Copy Rights in this Province, c. 61, s.I.2961 Ibid., S. II.30renewed for another fourteen years after its expiration. As it will be seen, this is acontinuing trend in copyright legislation: as the general life expectancy of thepopulation increases so does the term of protection.Unlike the 1710 Statute of Anne, the Canadian legislation enumerates the types ofworks which are eligible for copyright protection: books, maps, charts, music;prints, woodcuts and engravings. While providing increased specificity, thecreation of a list of eligible works within the statute has necessitated frequentupdating of the Act as new technologies and categories of works emerge. This hasbeen especially crucial in the rapidly growing area of computer technology.Another difference between the original British Act and the Canadian Act of 1841is the inclusion in the latter of artistic works-- music, prints, woodcuts andengravings-- as well as the original English concept of protection for literaryproperty.62 Artistic works such as those listed above were deemed to have thesame qualities as literature (i.e. they were incorporeal personal property) andtherefore required the same type of protection. Although the term artistic works isused throughout the discussions of this category, there is no requirement of artisticor creative quality for the work. English case law has interpreted this to mean that"anything more elaborate that a straight line qualifies as an 'artistic work' and aruled form with a few headings can be protected as a copyright literary work."6362The current English legislation approaches the categorization of works from a different angle. InEngland, artistic works are classed as derivative works and are treated differently in terms of length ofprotection and ownership of copyright. See Copyright Act 1956.63British Northrup Ltd. v. Textcam Blackburn Ltd., F.S.R. 241 (1973), R.P.C. 57 (Ch. D 1974) andBulman Group Ltd. v. One Write Accounting Systems Ltd., 62 C.P.R. (2d) 149 (Fd. Ct. 1982) as quotedin Vaver.31The Canadian Act provides protection for authors who actually create the works,as well as for those who cause such works to be created. Thus, the artist whoconceives of a design for a print is the first owner of the copyright in that print, notthe person who may have actually made the wood cut or the engraving under thedirection of the artist.64According to the 1841 Act, in order for an author to secure the copyright of awork, it must be registered in the Office of the Registrar of the Province and acopy must be deposited in the Legislative Library. "No person shall be entitled tothe benefit of this act unless he shall, before publication, deposit a printed copy ofsuch book . . . in the office of the Registrar of the Province, which Officer ishereby directed and required to record the same forthwith in a book to be kept forthat purpose."65 This grew out of the original system in eighteenth centuryEngland where works had to be registered with the Company of Stationers in orderfor copyright to be granted.66 At that time, all works had to be registered,because copyright was granted to both new and old works. Authorship was oftennot relevant to the determination of who owned the copyright, therefore a systemhad to be created which assigned the rightful ownership to those stationers whoapplied for it.Moreover, the 1841 Act stated that copyright ownership also had to be noted onevery title page of every copy of the work that was printed: "no person shall be64This is crucial to the understanding of the present day difficulties in assigning copyright ownership inphotographs and films where a number of people are usually involved in the production and design of thework. This topic will be discussed more fully in the section on ownership of copyright in the 1921 Act.65A11 Act for the Protection of Copy Rights in this Province, s. V.66A system for the registration of copyright also exists in the United States.32entitled to the benefit of this Act unless he shall give information of Copy Rightbeing secured, by causing to be inserted in the several copies of each, and everyedition published during the term secured."67 This is the only clause that does notresemble the earlier English legislation. It is taken instead from the Americanlegislation of that period. In 1892, Daniel Wilson, President of the University ofToronto, suggested that "Canadian legislators forthwith proceed to take this [theAmerican legislation] as their model [in drafting the Canadian Act]."68 As it willbe seen, the practice of using the legislation of other Anglo-Saxon countries as amodel for Canadian legislation is widespread-- the Canadian 1921 Act is almost averbatim copy of the 1911 British Act.After the confederation of the provinces in 1867, a statute governing the newlyformed nation of Canada needed to be written. In 1889 an Act was passed thatrevised the earlier 1841 Act. The revision is very similar to the original act andchanges only three relatively minor clauses:"1) Copyright had to be registered with the Ministry ofAgriculture.2) Copyright could be owned by any inhabitant of Canada ora citizen of any country which had a copyright treaty withCanada [the Berne Convention had been written in 1886].3) A license to copy a work would have to be obtained if thecopyright owner could not be found."67An Act for the Protection of Copy Rights in this Province, s. VI.68Daniel Wilson, Canadian Copyright, paper read before the Royal Society of Canada, May 31, 1892, 7.33Wilson rekindled the debate of 200 years earlier regarding an author's right toperpetual copyright. He argued that an author's eternal right to his work "is his, asis the land which the industrious settler has . . .redeemed from the wilderness or asthe manufactured goods of the producer who by labor and . . .skill transforms theraw material. . . into the marketable goods."69 This argument is almost identicalto that used in 1774 to support an author's right to perpetual copyright in England.However, in nineteenth century Canada as in seventeenth century England, therewere other scholars who had more persuasive arguments against perpetualcopyright.Robert Lancefield, a Hamilton librarian, wrote that, during the discussion of thepetitions when the new copyright act was presented at Ottawa,"The protection of the printers and publishers was only one of thereasons advanced for the passing of the Act. But while that is themost important reason others were not wanting. The author is butone of those that enter into the making of a successful book; thepublisher, with his wide and varied connections and ready facilitiesis frequently equally as important a factor than the author, andoccasionally even more so."70As to whether or not an inexperienced and unknown author should be entitled toan equal share in the profits of a book, Lancefield asked the following question:when a publisher buys a manuscript from an author and proceeds to turn it into amarketable book, does the author also expect to share in the debts incurred if thebook sales fail to cover the publisher's expenses? Obviously, Lancefield states,the answer is no. To support his argument, Lancefield cited the statistics which69thid.7othid., 9.34proved that even the largest and most experienced publishing houses in Londonsuffered an economic loss for one out of every ten manuscripts they bought. Thepoint made by Lancefield is that publishers need to be protected by copyright lawsince they make an equal or possibly greater investment in literary property thanthe author does, and as a result assume most of the financial risk, particularly withunknown authors, and in nineteenth century Canada there were few well known,successful authors. In fact, it appears that Canadian authors were thoroughlyuninterested in the new legislation. "The passing of the Copyright Act in 1889almost without attracting the notice of the Canadian authors and those speciallyinterested in science and letters is significant," writes Wilson.71An important concern for the legislators had been the establishment andadvancement of the Canadian publishing trade. By ruling out perpetual copyrightin favor of a limited term copyright, the legislators hoped to encourage publishersto publish Canadian editions of works which were part of the public domain ratherthan rely on the importation of books from England and the United States. Alimited term copyright would also have provided for the cultural and educationalenrichment of Canadian society by allowing works to enter the public domainwithin forty-two years of publication.By the turn of the century, many changes had occurred throughout the country:new areas had been settled, rich resources has been discovered in the West, andimmigrants poured into North America by the thousands. Canada continued togrow and develop. There were more authors and publishers, and new technologieshad been developed for recording information. In 1921 a new Copyright Act was71Ibid., 11.passed which was almost a verbatim copy of the British legislation of 1911. Itreceived royal assent in 1925.The 1921 Act established that all "original literary, dramatic, musical and artisticworks were covered by the new law if the author was at the date of the making ofthe work a British subject" or a citizen of a foreign country which adhered to theBerne Convention of 1908.72 The categories of works which were protected were: architectural works, films, photographs, perforated rolls (as used in playerpianos), engravings, and portraits.As was the case in England, the term 'original' did not imply any notion of artisticquality or expertise. A work had to be original only in the sense that it was not thecopy of another work.73The rights protected by the statute were defined as:"The sole right to produce or reproduce the work or anysubstantial part thereof in any material form whatever, toperform, or in the case of a lecture to deliver, the work or anysubstantial part thereof in public, or, if the work isunpublished, to publish the work or any substantial partthereof, and includes the sole righta) to produce, reproduce, perform or publish any translationof the work,b) in the case of a dramatic work, to convert it into a novel.72Copyright Act 1921, s. 5(1). For a thoughtful and thorough discussion of the Canada's role ininternational treaties such as the Berne Convention and the Universal Copyright Convention see Vader.73For a thorough discussion of the requirements of copyright protection in Canada, see R. Barrigar,"Copyright Law: A Legal Interpretation," in Copyright Law: Business and Legal Applications,(Toronto: Insight Press, 1988), 2-12.35c) in the case of. . . non-dramatic works, or of an artisticwork, to convert it into a dramatic work by way ofperformance in public or otherwised) . . . to make any record, perforated roll, cinematographfilm or other contrivance by means of which the work may bemechanically performed or deliverede) . . . to reproduce, adapt and publicly present the work bycinematograph, if the author has given the work an originalcharacter, andt) . . to communicate the work by radio communication."74The term of protection for published works was fifty years from the date of deathof the author.75 This is an increase from the British term of protection of twenty-eight years with a renewal period of fourteen years, but as noted earlier, the termof protection tends to increase as the life expectancy of the population increases.The rationale for the length of the term is that the author and his/her dependentchildren should have a right to the economic benefit of his/her work-- twogenerations has been the rule of thumb. The work then enters the public domainto be used and enjoyed by all.Copyright in unpublished works, however, was to "subsist until publication orperformance or delivery in public, whichever may first happen, and for a term offifty years thereafter."76 The result of this clause is that copyright exists inperpetuity for the vast majority of unpublished works, which is never published,74Copyright Act 1921, s. 3(1).S. 6.s.7.36performed or delivered in public. This clause of the legislation creates a veryimportant distinction between published and unpublished works. Unpublishedworks are protected by the legislation until such time as they become publishedand for a period of fifty years after, whereas published works can be copied andused freely fifty years after the death of the author77.Publication is defined by the 1921 Act as:"The issue of copies of the work to the public and, does notinclude the performance in public of a dramatic or musicalwork, the delivery in public of a lecture, exhibition in publicof an artistic work or the construction of an architectural workof art."78There has been some debate in Canada as to whether or not unpublished worksdeposited in a public institution (archives or library) are to be consideredpublished, and therefore whether they are subject to the limited term of copyrightprotection-- fifty years from the date of death of the author.79 It is doubtful thatthis would become an interpretation of the term 'publication'. In the case ofincoming correspondence contained among personal papers donated to an archivesby the recipient of the material, this would entail the automatic publication of77Photographs were protected for a term of fifty years after the creation of the original negative.78Copyright Act 1921, s.4(1).79Jean Dryden, "Copyright in Manuscript Sources," Archivaria 1 (Winter, 1975-76): 39- 46. It has sincebeen determined by common law in the United States and the United Kingdom that deposit in a publicinstitutiton is Lot publication and does not change the term of protection to that of a published work.37material which the copyright owner, the author of the correspondence, did noteven know had been donated.80The 1921 Statute abolished the clause that a work had to be registered in order forcopyright to subsist in it. The only criteria listed in the statute were that the workmust belong to one of four classes, literary, dramatic, musical or artistic; that itmust be original (not a copy), and that it must have been created by a Britishcitizen or a national of one of the subscribers to the 1908 Berne Convention. Thisis a reflection of the British legislation of 1911. Registration was not required forcopyright to subsist in British works, because the act of creation was sufficient.81The Canadian Act of 1921 protected photographs for a term of "fifty years fromthe making of the original negative." The owner of the copyright was defined as"the person who was the owner of the negative at the time when the negative wasmade."82 This clause has created a great deal of discussion as to who the ownerof copyright in a photograph should be: the possessor of original negative, thephotographer, the set designer or director, the sitter, or the employer. This is due,in part, to the wide variety of situations in which a photograph can be taken.With the explosive growth of government bureaucracy in the twentieth centuryCrown copyright suddenly became an area of interest. The copyright in works8°In Salinger v. Random House Inc., 811 F. 2d 90 (2nd Cir. 1987), Salinger was the author, andcopyright owner, of letters contained in the fonds of another person which had been donated to a library.In this case, donation of the letters was not deemed publication. The material was treated as unpublished.81 Thid., S. 10. It is also no longer neccessary to register a work in the United States in order for copyrightto subsist in it: the act of creation in sufficient. See Melville Nimmer, Cases and Materials on Copyrightand Other Aspects of Law Pertaining to Literary. Musical and Artistic Works, (St. Paul, MN: WestPublishing Co., 1979), 173.3882Thid.39which are "prepared or published by or under the direction or control of herMajesty of any government department shall . . . belong to Her Majesty and in thatcase shall continue for a period of fifty years from the date of the firstpublication."83Due to an increasing public awareness of the plight of the common laborer and thegrowing strength of the labor movement, a specific clause was introduced into the1921 legislation to cover works made by employees. The copyright in worksmade in the course of employment was deemed to be first owned by "the personby whom the author was employed".84 This is a reflection of the early tradition ofAnglo-Saxon copyright. Copyright legislation was created to protect the personwho made the largest financial sacrifices in bringing the work to the market(originally the stationer). Therefore the employer is considered to be the firstcopyright owner. The same influence is seen in the section on works made forhire. The copyright in works which are "ordered by some other person and madefor valuable consideration" shall be owned by "the person by whom the plate orother original was ordered."85 Once again the person who took the financial riskin the creation of the work is the first copyright owner. This position is alsosupported by the fact that in a work for hire the client usually has ultimate controlover the final product. The actual physical creator of the work may make many ofthe small decisions as to the details of the work but the client usually states theinitial requirements when he orders the work, and gives final approval of the work.83Copyright Act 1921, s. 12. The opposite is true in the United States: on the grounds that thegovernment is considered as existing to serve the people, all works prepared for or by the government areconsidered to be in the public domain from the moment of creation and can be freely copied."Ibid., S. 13(2).85Thid.40A rich theoretical discussion of the persons involved in the creation of a work isfound in the discipline of diplomatics, the study of documents and thedocumentation process. In diplomatics, the person who causes the work to becreated is defined as the author: "the author of the act is the person whose willproduces the act."86 Other persons involved in the creation of a document are: thewriter, who has control over the physical form of the work and "is responsible forthe tenor and the articulation"87 of the work, the countersigner, who is responsiblefor "validating the physical and intellectual form" of the work, and the addressee,"the person to whom the document is directed".88In the case of works made by employees, the person whose will caused the workto be created is the employer, while the employee merely carries out the directionsof the employer. Thus the copyright is first owned by the author-- the employer.The same is true of works made for hire. The person whose will caused the workto be created in the first place is the consignor. The person hired to do the workcarries out the wishes of the consignor. Thus, once again, the copyright is firstowned by the author of the work-- the consignor.Thus, it is clear that the 1921 legislation, which has been criticized for assigningcopyright haphazardly maintains the same unifying philosophy throughout itsmany clauses: copyright is first owned by the author of the work.89 Copyright86Durand, "Diplomatics Part III" Archivaria 30 (Summer 1990): 12.87thid., 7.88Thid.89See discussion regarding the supposed inconsistencies in the 1921 legislation in Barry Tomo,Ownership of Copyright in Canada (Ottawa: Consumer and Corporate Affairs, 1981), 9.41scholars and legislators might consider abandoning the common definition ofauthor, which often corresponds more directly to the diplomatic definition ofwriter-- the person who is responsible for the articulation of a work rather than theoriginating idea or impetus for the work. Scholars and legislators might insteadadopt the richer and more accurate definitions found in diplomatics.The use of diplomatics allows scholars to define more accurately the personsinvolved in the many complex situations in which modern works can be created,and reveals the underlying simplicity of the 1921 legislation-- copyright is firstowned by the author of the work. The confusion which resulted from thelegislation derives not from the Act itself but rather from a bereft moderndefinition of author.One of the most important sections in the 1921 legislation is section 14 (4), whichdiscusses moral rights. This clause allowed for the author to have some controlover his/her work even after the copyright had been assigned or sold to someoneelse. "Independently of the author's copyright and even after the assignment. . theauthor has the right to claim authorship of the work, as well as the right to restrainany distortion, mutilation, or other modification of the work that would beprejudicial to the honor or reputation of the author."90 This provides the authorwith a great deal of control over the dissemination of his/her work even after therights have been sold. A work must always be attributed to the correct author andthat author has the right to control any subsequent modification of the work nomatter who owns the copyright or where the work is located (within Canada).90Copyright Act 1921, s.14(4).42This clause is a substantial variation from the early English legislation, which wasconcerned solely with the economic aspects of a work. In one case in which aBritish author wished to remove a book from publication on the grounds that itwas defamatory and would cause his reputation to suffer, the presiding judgerefused to have the book withdrawn, and succinctly summed up the British notionof copyright by stating in his reason for judgement that "the mud may cling but theprofit will be secured."91 It has been suggested that the inclusion of moral rightsearly in Canadian legislation may be due to the unique combination of civil andcommon law that exists in Canada.92Another section of the 1921 legislation that is absent from the British Act of 1911is the section on Performing Rights. This section provides for the registration ofall copyrighted material owned by the performing societies with the Minister at theCopyright Office.93 Each society shall also "file with the Minister of theCopyright Office statements of all fees, charges or royalties that such society . . .proposes to collect."94 These statements were then to be published in the CanadaGazette,95 thus providing for the orderly and efficient administration of copyrightin what was becoming a large and productive field.One of the most contentious sections of the 1921 Act is 27 (2(a)) which is nowknown as the Fair Dealing section. It lists several exceptions to the infringement91Phillips, 193.92As was discussed in Chapter One, moral rights which are absent in British copyright are an extremelyimportant concept in the civil law notion of droit d'auteur.93Cooyright Act 1921,s. 66(1)s.66(2).s. 67(1).43of copyright. The most crucial clause is the one which deals with private studyand research. "Any fair dealing with any work for the purposes of private study,research, criticism, review or newspaper summary" is an exemption under thissection.The Fair Dealing section does not create or grant a right to use copyrightedmaterial as the United States section on Fair Use.96 Section 27 (2(a)) isinterpreted far more narrowly. Rather than creating a right to use copyrightedmaterial, fair dealing can be used only as a defense to an infringement ofcopyright. It is still an infringement of the law to use copyrighted material in themanner described in section 27(2). Section 27(2) only allows a person to use fairdealing as a defense to an unlawful act.This clause has caused a great deal of confusion for most users and administratorsof copyright. In fact, the statute does not define private study, research, criticismor review nor does it state whether fair dealing applies to unpublished works. Thishas been left for common law to determine. The courts have decided that fairdealing cannot and should not be defined by percentage or amount, rather "It mustbe a question of degree. You must consider the number and extent of quotationsand extracts. . . next you must consider the proportions . . . but after all is said anddone, it must be a matter of impression."9796See Leon Seltzter, Exemptions and Fair Use in Copyright (Cambridge: Harvard University Press,1978), and William Patry, The Fair Use Privilege in Copyright Law (Washington D.C.: The Bureau ofNational Affairs, 1985).97Lord Denning in Hubbard v. Vosper, 1 All E.R. 1023 (1971).44In a 1925 case, it was deemed that the use of an unpublished letter for the purposeof criticism was not "fair dealing" precisely because the work was unpublished.The Court felt that the author of the work had never intended it to be used by thepublic: unpublished works were not to be considered subject to the exemption offair dealing.98 This has serious implications for the administration of copyrightin archival institutions and will be discussed more fully in the following chapters.The 1921 Act firmly established the following rights under copyright protection:"the sole right to moral rights, right to first publication, the right to exhibit,perform or display the work, and in the case of a lecture to deliver the work inpublic."Due to the rapid advances made in communication technology in the late twentiethcentury and the wide dissemination and use of photocopiers, computers, faxmachines, magnetic tapes and optical disks, there has been enormous pressure torevise the 1921 Act. Britain has passed a new copyright law in 1956, and severalsubsequent revisions, the United States has written one in 1976, and Australia in1968 and 1980. Canada partially updated its seventy year old legislation onlyvery recently-- a final, complete package of copyright revision is not ready yet.In 1971, the Economic Council of Canada published the Report on Intellectual andIndustrial Property as the third and final study in a series on consumer affairs,competition policy and policy concerning intellectual and industrial property.The Council attempted to "bring all these hitherto rather specialized and under-98British Oxygen Co. Ltd. v. Liquid Air Ltd., 1 Ch. 383 (1925).45researched policies more into the mainstream of economic policy making. . . andalso to relate them better to each other."99The Council recognized three main themes in its discussion on economic policyand intellectual property: the importance of the general public and consumerinterest, the importance of the efficient allocation of the resources available to theeconomy, and the economic importance of knowledge and information.100 Therevisions suggested in the report were an attempt to balance the conflicting needsof users, government administrators and copyright owners. Unfortunately, thereport was largely ignored by legislators.In 1977, a report from Consumer and Corporate Affairs was published with thetitle, Copyright in Canada: Proposals for a Revision of the Law. Keyes andBrunet, the authors of the working paper, tried to "reflect contemporary concernsof a broader philosophical nature. . .with constant references to society's newlyaffirmed needs for instant access to information."101 Although they realized thatthe interests of the general public were an important aspect of any copyright study,they were also cognizant of the fact that copyright is nevertheless a privateproperty right. "Identifying exclusively. . . the public's right of access toinformation is a bias that should be resisted in that it would eventually lead to thedemise of the concept of private property in copyright law."102 Keyes and Brunetwere generally very conservative in their proposed revisions for Canadian99Economic Council of Canada, Report on Intellectual and Industrial Property (Ottawa: 1971), 217.100Ibid.lot Keyes and Brunet,1021bid., iv.copyright legislation often following the revisions contained in the 1956 BritishAct. However, this report was also largely ignored by the legislators.In 1984, a second report detailing the much needed revisions to the copyright actwas published by Consumer and Corporate Affairs entitled, From Gutenberg toTelidon: A White Paper on Copyright. This paper, while attempting to strike afair balance between the rights of creators and those of users, found that "theimportance of the work of the individual creator will continue to grow as oursociety moves ahead into the information age."103 This is a very differentdirection from that taken in the 1971 Economic Council Report, whichemphasized the economic aspects of copyright within the broader spectrum of theeconomy of Canada. However, the authors of the White Paper cautioned that"nobody should be under the delusion that copyright legislation, by itself, willsolve either the economic or social problems of all authors."104 The paperrecognized three central areas for revision: the establishment of collectives toadminister royalty payments to copyright owners, the inclusion of computerprograms within the list of eligible works, and the strengthening of an author'smoral rights.Later in 1984, another government-commissioned study was released: A Charterof Rights For Creators. This paper is quite a radical step away from the earlierKeyes and Brunet report and the White Paper on Copyright. A Charter of Rightshas been heavily criticized by some copyright scholars for being biased towards103The White Paper on Copyright, 2.461Ibid., 3.47creators from its inception (hence the title) and for listening unduly to pressuregroups who are, in fact, not Canadian and do not represent Canadian interests.105In 1987, a partial revision to the Copyright Act was finally passed. The revision,Bill C-60, was written largely in response to the needs outlined in the 1984 WhitePaper. Bill C-60 included computer programs within the category of literaryworks, expanded the moral rights of authors, and provided for the establishment ofcollectives to collect user fees.Bill C-60 states that the definition of "literary work includes tables, compilations,translations, and computer programs."106 The result of this is that copyrightprotection in computer programs exists for the term of the life of the author plusfifty years-- the same as for other literary works. This is a particularly crucial areaof copyright in the 1980's and 90's, due to the massive economic expansion of thecomputer industry. Bill C-60 also makes provisions for the copying of programsfor back-up purposes and for reasons of computer program compatibility (forexample the translation from one computer language to another).107 This sectionwas a much needed improvement over the earlier 1921 legislation which naturallydid not cover computer programs in the list of works eligible for copyrightprotection.105See Vader, 78 and Santoro, "The Association of Canadian Archivists Copyright Committee: AResponse to A Charter of Rights for Creators," Archivaria 21 (Winter 1985-6), 126.106R.S.C. Bill C-60. An Act to Amend the Copyright Act. 1987 c. 10 (4th supp.), s. 10(1(2)). HereafterR.S.C. c. 10, 1988.107It is possible that, with the continuing development of technology, media will be produced which arenot as fragile as the current magnetic floppy disks (eg. optical disks). J. Peter Sprung in "CopyrightProtection for Computer Software," Copyright Law: Business and Legal Applications (Toronto: InsightPress, 1988) suggests that this will probably become an obsolete and possibly damaging phrase in thenear future.48One of the most difficult problems associated with the protection of computerprograms is determining exactly what elements are covered by copyright. After aninitial attempt at submitting computer programs for patentability, creators ofcomputer programs turned to copyright as a means to protect their property. Thedebate which ensued from this move towards copyright protection has centeredaround whether or not computer programs are ideas and therefore not subject tocopyright protection, or whether they are unique expressions of those ideas andhence copyrightable just like any other literary work.In order to understand the applicability of copyright to computer programs, it isnecessary to outline the steps involved in creating a program. First, a programmerdevelops an overall program design from his or her original idea. A source code,or high level language, which contains all of the necessary elements of theprogram, is written. The source code is then converted or translated into a codewhich can be read by the computer. This is termed the object code or low levellanguage. The object code (which is generated from the source code) is whatactually runs the computer.The first stage, designing the program, typically requires the most time, energy,creativity, and skill. The translation phase (putting the design into object code)does not require as much time or expertise and is usually completed by a junior orless experienced programmer. The paradox results from the fact that copyrightlegislation protects only the tangible expression of ideas-- not the design ideasthemselves.49This has lead some experts to believe that copyright may not be the appropriatelegislation under which to protect computer programs. Licklider, of theMassachusetts Institute of Technology, stated before the Commission on NewTechnological Uses of copyright works (CONTU) that: "In the actual world ofprogramming, all the people want is the effect of the action to the program. Theydon't care a thing for the particulars of the expression . . . so, I submit, you'reprobably protecting the wrong thing "108One of the largest problems in determining what copyright should protect is thefact that these unique expressions of ideas (or literal code) are intended to be readby machines. Computers can, quite rapidly, convert an object code written in onelanguage back to the source code. Programmers then insert a minimum ofidiosyncrasies to make the program look like a new, creative work. The computerthen translates this slightly different source code into a new object code-- possiblyin a different language. This sort of process was never done (and could never bedone) with the more traditional literary works: novels, short stories, essays, andpoems. Because computer languages are so much more limited than humanlanguage (hence the term 'code'), it is much easier to mutate and translate them,unlike human language, where often a simple change in wording can result in adramatically different meaning. Hence a program which appears to be quitedifferent from another may have, in fact, been copied from the first program; thenminor changes are made by the computer to obscure the fact that the program wasactually copied. Consequently, while there are some differences between the twoprograms, possibly written in different languages, there has not been enough time,energy and individual creativity applied on the part of the author of the second108CONTU meeting, No. 18, 131 as quoted in Current Developments in Copyright Law 1986, 476.50program for it to be considered a new work in its own right and thus subject tocopyright protection. Computer programs, because they involve the use of highlytechnological devices, have created a whole new area of controversy for copyrightscholars to debate and analyze.Computer programs are also different from the traditional literary works in thatthey are factual works. They are "instructions or statements to be used .. . in acomputer, in order to bring about a desired result."109 Thus, there may be greatsimilarity between programs out of necessity-- facts can usually be represented inonly a finite number of ways, as opposed to works of the imagination wheremodes of expression are almost infinite This has lead some copyright experts towonder whether there is a limited number and type of program which can besubject to copyright-- that is, only those programs which are original and uniqueenough to be considered works of authorship would be applicable for copyrightprotection. All other programs, which are simply statements of fact or 'laws ofnature', would be ineligible for copyright protection. These programs would beconsidered to be in the public domain.In 1983, a case came before the American courts, Apple Computer Inc, v. FranklinComputer Corp., which involved the alleged infringement of an operating systemproduced by Apple. An operating system is the program that schedulesoperations, manages storage, controls input and output and other various"housekeeping" activities which are done by the computer. The design of theoperating system is naturally very highly constrained by the type of machine it1°9R.S.C. c.10, 198851runs on. The question before the courts was whether or not this type of program,an operating system, was copyrightable.The defense openly admitted copying Apple's operating system but argued that"the idea of the operating system software was indistinguishable from itsexpression," and thus not subject to copyright protection.110 Franldin furtherclaimed that, because the system was so constrained by physical requirements (dueto the nature of operating systems), if it were to market a personal computercompatible with the Apple II, it was required to use the same operating system.The court did acknowledge the problem surrounding computer programs and thecoalescence of idea and expression that can happen as a result of the oftenseverely limited number of ways available to express the ideas found in programs.If there is only one way of expressing an idea, the idea and expression are said to'merge'. Copyright cannot apply to cases such as these since copyright cannotprotect ideas, it can only protect the unique expression of ideas. The court statedthat "if other programs could not be written to represent the ideas in the operatingsystem, there would be a merger of expression and idea for which copyrightprotection could not be given."111The court, however, found for Apple and stated that "compatibility is acommercial and competitive objective which does not enter into the somewhatmetaphysical issue of whether particular ideas and expression have merged."112I I °Robert M., Newbury, "Copyright Protection for Computer Programs," Current Developments inCopyright Law 1986, 491.111Thid.52The defense of compatibility was not strong enough to warrant use of Apple'sprogram-- even though compatibility may be one of the most vital marketing toolsa program can have.A second case involving a similar defense appeared the following year, AppleComputer, Inc. V. Formula International, Inc.. Again, an exact copy of Apple'soperating system had been produced by the defense. The court held that Applehad no right to protection against Formula for writing a program "whichperformed the exact same function or purpose" but could be protected against aprogram which performed the function "in the exact same manner." Again thecourt recognized that grounds for a merger of idea and expression could be foundif there was only one way to write a program which performed the functions of theApple operating system. However, the defense did not provide enough evidenceto convince the court of this. Again the court found in Apple's favor.These two decisions have shown that programs in which idea and expressionmerge, will be considered to be unprotected by copyright legislation. However,the burden of proof lies with the defendant to show that a program can only bewritten in one specific way-- which is likely to be rather difficult to prove. Whilecomputer languages are limited, in comparison to human language, they are not socompletely bereft of expressive capability as to be virtually identical even whenexpressing the same ideas. They are, after all, written by humans who are capableof expressing their ideas in a myriad of ways. If the defense fails to prove thatonly one method of expression exists for any given idea, the court will probablyfind that infringement has occurred.53Other questions have arisen as to what other types of programs could becopyrighted in addition to operating systems. Discussions have centeredprimarily around programs located in read only memory (ROM), source and objectcodes, video display, and file structure and arrangements.In Apple Computer Co., Inc v. Franklin Computer Corp., the question came before thecourt as to whether object code, the code read by the computer, could be eligiblefor copyright protection. The court found that copyrightability did not depend onthe level of the code or whether the work communicates directly to humans. Thecourt held that "a computer program represents copyrightable subject matter,regardless of whether the program is presented in source code, designed to be readby a human reader, or in object code, which normally can be read only by thecomputer."113The defendant argued that programs located in ROM, which can be accessed andread only by the computer, should not be eligible for copyright protection sinceROM is essentially a utilitarian device and therefore not subject to copyright. Thecourt held that "it is the embodiment of the expression within the ROM which isprotected."This case was a breakthrough in the early thinking about copyright and computerprograms. It moved the discussion away from protection of only the literal code,which was considered to be just a series of statements or instructions which run amachine, towards the doctrine of computer programs as the unique expression ofideas which incidentally run a machine and which happen to be located in a type113Ibid., 476.54of medium which can only be accessed and read by machines. In this philosophycomputer programs are considered to be much more similar to other traditionalliterary works-- that is the unique, creative expression of ideas rather than somerudimentary non-creative device which simply runs a machine.In one of the most important cases to date, Whelan Associates Inc., v. Yaslow DentalLaboratory Inc., the court discussed such complex matters as what part of acomputer program can be copyrighted: the logic and ordering of elements withina program, the file structure, and the screen display or just the literal, object code.The court found that "it is surely true that limiting protection to computers' literalcodes would be simpler and would yield more definite answers than does ouranswer here. Ease of application is not, however, a sufficient counterweight to theconsiderations we have adduced on behalf of our position."114The court compared the logic and ordering of elements within a programto the sequence and ordering of items in a traditional compilation or derivativeliterary work which had previously been determined as acceptable for copyrightprotection."Although the Code does not use the terms 'sequence,' 'order,'or 'structure,' it is clear from the definition of compilationsand derivative works, and the protection afforded them, thatCongress was aware of the fact that the sequencing andordering of material could be copyrighted, i.e., that the114 Morton David Goldberg, "Current Judicial Developments in Copyright Protection for ComputerSoftware," Current Developments in Copyright Law 1988, 94.55sequence and order could be parts of the expression, not theidea of a work."115The court also compared file structures (the arrangement and ordering of datafields) within a computer program to the more commonly known blank form. Ahuge breakthrough on the heretofore muddied situation involving thecopSrrightability of file structures was decidedly cleared up by the court's decision.The court agreed with defendants that "file structures in a computer program maybe analogized to blank forms. . .and that blank forms may be copyrighted if theyare sufficiently innovative and that their arrangement of information is itselfinformative." 1 16Screen outputs were also considered by the court. Screen displays were attributedsome evidentiary value in revealing the nature of the underlying program. Thecourt stated that "there is necessarily a causal relationship between the programand the screen outputs. The screen outputs must bear some relation to theunderlying program, and therefore have some probative value."117The fact that screen displays are meant to be read by humans weighed heavily inthe court's decision to grant them protection because-- as the court stated-- "thescreen outputs are vivid and easily understood (at least as compared with theobscure details of computer programs)"118 This was the first time screen displayslisibid., 96.116thid., 99.117Ibid.,118thid.were allowed to be admitted as evidence in a suit involving the copyrightinfringement of a program.With regard to the nature of programs as copyrightable material the court foundthat, "there is thus no statutory basis for treating computer programs differentlyfrom other literary works in this regard."119 The court reaffirmed the notion thatcomputer programs are copyrightable in that idea and expression do not merge butare, in fact, entirely separate. The court stated that "the conclusion is thusinescapable that the detailed structure of the [plaintiffs] program is part of theexpression, not the idea, of that program."120Another problem presented by computer programs is their highly technical nature.Few judges are well versed in the intricacies of computer programming and thenuances of machine code. This has lead the courts to rely more heavily upon theconduct of the defendant in cases where the similarity of expression between twoprograms must be determined. If the work is a verbatim copy, it is likely thatinfringement will be found if the court determines that the idea can be expressedin more than one way.In order for a court to determine whether or not one program is a copy of anotherit must analyze the similarity of expression. If one program is found to besubstantially similar to another it will be found to be an infringement. Theproblem is in determining what is substantial and what is not. The courts havestruggled over this throughout the 1980's. In addition to looking at the conduct of97.56120thid., 99.57the defendant, courts must take into consideration the importance of the section ofthe program that has been copied. This is a very subjective test, in which the courtrelies upon expert testimony regarding the nature of computer programs and theircomponent parts. If a program contains a small amount of a copied work, but theportion copied is one of extreme importance to how the program runs, this wouldlikely be found to be an infringement. It is not a strict question of quantity-- howmuch has been copied-- but rather one of quality-- how important or significant isthe section that has been copied.In Whelan v. 5asCowe the court found that:"the copyrights of other literary works can be infringed evenwhen there is no substantial similarity between the works'literal elements. One violates the copyright of a play orbook by copying its plot or plot devices. . . By analogy toother literary works, it would thus appear that the copyrightsof computer programs can be infringed even absent copyingof the literal elements of the program."121From these illustrative cases it is clear that the doctrine of copyright with respectto computer programs has evolved from an early narrow approach to programs aspatentable procedures or processes which are utilitarian in nature towards a muchbroader philosophy of programs as the unique expression of an author's originalideas. This philosophy classifies computer programs very closely with othertraditional literary works.Under the Whelan and the Apple decisions, copyright is now considered to exist inboth object and source code, in ROM, in video displays, in file structures, and in121Th1d., 91.58the overall logic and ordering of elements within a program. In order to proveinfringement, substantial similarity must be found, which is primarily a subjective,qualitative test in which output such as screen display can be admitted asevidence. Most importantly, computer programs are considered to be not ideas,which are uncopyrightable, but the unique expression of an author's original work,and thus eligible for copyright protection as a sub-category of literary work.J. Peter Sprung, a noted Canadian specialist in copyright protection and computersoftware, agrees with the recent decisions of the American courts. He writes that,"the adoption of 'look and feel' tests to decide infringement brings us close to thekind of proprietary rights we need to protect in computer programs, and toencourage the publication and dissemination of new ideas." 122In addition to including computer programs as a type of literary work, Bill C-60also expands upon the moral rights given to authors in the 1921 legislation. Moralrights are defined as "the right to the integrity of a work and . . . the right to beassociated with the work as its author. . . and the right to remain anonymous."The infringement of the "integrity of the work" is further defined as follows:"The author's right to the integrity of a work is infringed onlyif the work is to the prejudice of the honour or reputation ofthe author,a)distorted, mutilated or otherwise modified; orb) used in association with a product, service, cause orinstitution."123122sprung, 12.123R.S.C., Ch. 10, S. 14(2(2)), 1988.59Moral rights can be extinguished but cannot be assigned or transferred, and they"subsist for the same term as the copyright in the work," (fifty years from the dateof death of the author).124 This is due to the fact that moral rights exist to protectthe integrity of the author only. The legislation has no interest in protecting theintegrity or reputation of someone who has bought the work in question. Thismeans that the author of a work can still exert a considerable amount of controlover his/her work even when he/she has sold the reproduction rights. Anyone whopublishes or exhibits a work in which moral rights subsist must take care not toinadvertently distort or modify the works or use them in association with aproduct, service, cause, or institution that would prejudice the author's reputation.This section on moral rights is potentially a very powerful piece of legislation.Archival institutions and libraries which produce exhibits must ensure that thereputation of the author is not distorted or modified by neighboring works withinthe exhibit, by the sponsors of the production or by the institution in which theexhibit is held.As has been suggested by Grace Hyam, the author's right to remain anonymous isalso a potential problem for archival institutions.125 One of the main entries inarchival description is the author of the work.126 Although this has not beentested by the common law, Hyam suggests that if the name used in the descriptioncan be found through the use of the historical method, it is unlikely that this wouldbe considered an infringement of moral rights.124Thid., s. 14(2(1)).I25Hyam, 176.I26Bureau of Canadian Archivists, Planning Committee on Descriptive Standards, Rules for ArchivalDescription (Ottawa: Bureau of Canadian Archivists, 1990).60Bill C-60 also makes special provisions for the collective administration ofcopyright.127 Under this scheme owners of copyrighted material can collectivelyappoint an association or corporation to administer the copyright for them. Thesociety or association:"a) carries on the business of collective administration for thebenefit of those [authors] who by assignment. . . authorize it [thecollective] to operate on their behalf. . .and;b) operated a licensing scheme applicable to a repertoire of worksof more than one author, pursuant to which the society. . . sets outthe classes of uses for which and the royalties and terms andconditioned on which it agrees to authorize [the use of said works]."This allows for groups of copyright owners (most likely authors and publishers) tojoin together to form collectives which deal primarily with the assignment andpayment of royalties. It has been suggested that these collectives would collectroyalties from libraries as a blanket payment for the photocopying that is done onthe premises of the library (by both staff and library patrons).128 It is unlikely,however, that the establishment of collectives will have any impact on archivalinstitutions. Donors hold copyright for only that material which they have created.The copyright on all incoming correspondence is owned by the author-- not theaddressee. In fact, very few donors (with the exception of literary figures) areaware of copyright. Since "there has been little objection on the part of copyrightholders to the current use of manuscript material in historical research" it seems127This is very similar to the British Public Lending Right 1979 wherein authors and publishers collectroyalties from libraries in accordance with the frequency with which a book is checked out.128Jim Keon, "The Canadian Archivist and Copyright Legislation,"Archivaria 18 (Summer 1984): 91-98.unlikely that the establishment of collectives will radically change theadministration of copyright in the majority of archival institutions.129While Bill C-60 has addressed some of the problems found in the 1921 copyrightlegislation (computer programs, moral rights, and collectives), there remain areasthat desperately demand revision: the term of protection for unpublished works,which currently exists for perpetuity; the copying out of print copyrighted materialfor preservation and security needs, which is currently an infringement under theAct; and the owner of copyright in photographs, who is the owner of the negativeat the time of creation of the original (a cumbersome, impractical provision).The government cannot claim ignorance as a defense against accusations that ithas not been sensitive to archival issues. Beginning with Jean Dryden's article inthe first issue of Archivaria, there have been many reports and papers detailing thespecial concerns of archivists in copyright legislation. Gina La Force examinesthe current proposals for revision to the legislation, Jim Keon provides anexcellent review of copyright and its implications for archives, and Grace Hyamdiscusses the recent partial revision and its possible effect on archives.130 TheACA Committee on Copyright has also remained an important force in submittingarchival concerns to copyright legislators.131129Dryden, 45.130Gina La Force, "Archives and Copyright in Canada: An Outsider's View," Archivaria 11 (Winter1980-81): 37- 53, Keon, Hyam.131Santoro, "An Update," and Gabrielle Blais, "Public Advocay and Awareness CommitteeReport,"ACA Bulletin 15, no. 6 (July 1991): 10.6162In summary, copyright legislation in Canada has moved from a relatively narrowconcern for the economic protection of the fledgling publishing industry to acomplex and comprehensive area of the law which attempts to cover all new anddeveloping communication technologies while providing for an author's moralrights to a work, the publisher's rights, and the user's rights through a limited termof protection and the fair dealing clause. However, further work is needed in theareas of: the term for unpublished works, the copying of out of print copyrightedmaterial for preservation and security needs, and the assignment of ownership ofcopyright in photographs and works for hire.CHAPTER THREE: CURRENT CANADIAN LEGISLATIONThe copyright issues of most concern to archivists are copying for preservationand security, the testamentary disposition of rights, the term for unpublishedworks, crown copyright, the ownership and term of copyright in photographs,rights to interviews, copyright in works for hire, and fair dealing. Therefore, theseissues will be discussed in some detail.Preservation and SecurityA standard and highly recommended practice for record creators is the copying ofunique and important records for the purposes of vital records management.132This is also done by archival institutions for inactive records which have beenselected for permanent preservation in an historical archives and which aredeteriorating and fragile or subject to heavy use. They are routinely copied andthen stored in environmentally sound conditions while the copy is used foranswering users' reference questions.Without this practice thousands of documents would be destroyed every yearsimply due to use. Many of the documents in Canadian archives are written onacidic paper which deteriorates at a rapid pace when exposed to light andhumidity. However, the copying of documents, regardless of the good intentionsbehind it, is an infringement under the present Canadian legislation. Both recordsmanagers and archivists, who are ensuring the longevity of Canadian archives, arebreaking the law.132Caro1 Couture and Jean Rousseau, The Life of a Document (Montreal: Vehicule Press, 1987), 136.6364The American Copyright Act of 1976 contains a section on special exemptions forthe reproduction of copyrighted material undertaken by libraries and archives.Section 108 allows a library or archives to make one copy of a work provided that:"(1) The reproduction or distribution is made without anypurpose of direct or indirect commercial advantage;(2) the collections of the library or archives are(i) open to the public, or(ii) available not only to researchers affiliated with thelibrary or archives or with the institution of which it isa part but also to other persons doing research in aspecialized field; and(3) the reproduction or distribution of the work includes anotice of copyright."In the United States an unpublished work can be reproduced by a library orarchives under the conditions described above for the purposes of preservation,security, conservation and research use. In fact, the same section of the 1976 Actstates that these special rights given to libraries and archives:"Apply to a copy or phonorecord of an unpublished workduplicated in facsimile form solely for the purposes ofpreservation and security or for deposit for research use inanother library or archives of the type described if the copyor phonorecord reproduced is currently in the collections ofthe library or archives."133Only one copy of each work can be made and it must be made by the archiveswhich has the original. This is to prevent the widespread multiplication of copies.133Copyright Act, U.S. Code, vol. 17, sec. 108b (1976).65There is a strict prohibition against the creation of multiple copies or thesystematic creation of copies in subsection (g). There is also the further restrictionthat the copy made must be in facsimile form: storage on a machine readable database would be an infringement of the Act.134Section 108 allows the archivist to preserve and maintain the holdings of thearchives by allowing for original documents to be stored off site inenvironmentally controlled conditions, while the user is provided with duplicatesfor normal reference requests. This section also allows for the duplication ofmaterial for the purpose of research use at another archives or library. In fact, it isoften the case that archival fonds are split between repositories. Archives A willhave half of a fonds (e.g., the personal correspondence of an individual) whilearchives B may have the other half (e.g., all of the professional papers of the sameindividual). Archival institutions are traditionally loathe to part with theirholdings. Section 108 circumvents this problem by allowing each archives tomaintain the full fonds: one half will be original records, the other half duplicates.A published work can also be reproduced for conservation or replacementpurposes if a copy is unobtainable at a reasonable price. The same is true for outof print works. At the request of the user, a library or archives may duplicate infacsimile form a work which is out of print. The duplicate must then become theproperty of the user, and the archives or library must "have no notice that the copywould be used for any purpose other than private study, scholarship or134Congress, Senate, Copyright Revision, 94th Cong., 2nd sess., 1975, Report No. 94-473, printed inCurrent Developments in Copyright Law 1977, 512.66research."135 A copyright notice must be prominently displayed on the requestform and at the place where requests are made.These are both very important revisions to the American Copyright Statute. Anarchives or special collections division often has unique published works whichare deteriorating or could be helpful for a researcher at a different location. Thissection allows for an archives or library to both preserve the materials in itsholdings and to improve the resources available to its users-- without damagingthe economic rights (right to publish, vend, distribute etc.) of the copyright holder.Section 108 contains a further provision that removes liability on the part of thelibrary or archives and its employees for the use of unsupervised duplicationmachines within the library or archives, provided that "such equipment displays anotice that the making of a copy may be subject to the copyright law."136 This isa welcome revision to the statute. Without it the liability of the librarian orarchivist is at best unclear.The overriding restriction of Section 108 is that the duplication must not take theplace of a work which could be subscribed to-- in the case of serials-- or bought inwhole-- in the case of published monographs. This section succeeds in bridgingthe delicate gap between the preservation and dissemination of information held inpublic libraries and archives and the protection of an author's right to the economicreturn derived from his or her original works. It maintains a delicate balancebetween a creator's rights to receive economic benefit from his or her work and the135Ibid., (e).136Ibid., (f(1)).overall benefit which accrues to the general public in the pursuit of research andknowledge.The Australian Copyright Amendment of 1980 also provides for the duplication ofdeteriorating, lost or stolen works if the library or archives is satisfied that areplacement is not available within a reasonable time and at an ordinarycommercial price.137The British Copyright Act of 1956 also makes special provision for the duplicationof out of print published works."[In the case of] published literary, dramatic or musicalworks, [copyright] is not infringed by the making orsupplying of a copy of the work, or part of it, by or on behalfof the librarian. .. [provided that] at the time when the copyis made, the librarian. . does not know the name and addressof any person entitled to authorize the making of the copy,and could not by reasonable inquiry ascertain the name andaddress of such person."138This is a more sweeping exemption than that found in the American legislation. Itallows the librarian or archivist to copy any published work for which thecopyright owner remains unknown or unlocateable after a reasonable inquiry hasbeen undertaken.The subsequent Copyright Designs and Patents Act 1988 (effective in GreatBritain in November 1988) does not radically alter this exemption. The conditions12.2 Laws, Statutes, etc., Copyright Amendment Act. 1980, 1980, no. 154, s. 51A.138Laws, Statutes, etc., 4&5 Eliz. 2, Copyright Act 1956, c. 74 (hereafter Copyright Act 1956), s. 7(5).6768regarding the class of institutions able to make copies, and the furtherrequirements necessary to satisfy this exception (such as a written disclaimersigned by the requestor) are to be contained in regulations which at this date havenot yet been written.The 1988 Copyright Act also makes provisions for the copying of unpublishedliterary, dramatic or musical works in whole or in part for the purposes of researchor private study. This provision does not apply if, at the time of the copying, thelibrarian or archivist "is or ought to be aware either that the work had beenpublished or that the copyright owner had prohibited copying of the work."139The regulations will probably contain requirements relating to copying fees andsatisfaction on the part of the librarian or archivist that the material copied willonly be used for private research.The Act contains a third provision which allows a library or archives to copyunpublished literary, dramatic or musical works for the purpose of preservation orfor supplying a replacement copy to another library. Again, the specificregulations which will further define this exemption have not yet been written.Through a combination of the 1956 and the 1988 Acts, the British legislation hascreated practical exemptions which support the customary needs of archives andlibraries without unduly infringing the author's rights: the need to copy out ofprint material, the need to copy for preservation and security, and the need tomake limited copies for research and private study..139David Lester and Paul Mitchell, Joynson-Hicks on UK Copyright Law (London: Sweet and Maxwell,1989), 172.69In Canada, Keyes and Brunet, in their 1977 Proposals for a Revision of the Law,suggest that "no statutory exceptions be provided to libraries and archives withrespect to copyright material deposited therein, other than to permit the making ofa copy for the sole purpose of preserving the material which is deteriorating ordamaged."140The subsequent 1984 proposal for the revision of the Act, The White Paper on Copyright, is less restrictive than Keyes and Brunet. It recommends that "anexemption be introduced. . permitting libraries and archives to make limitednumbers of copies of unpublished, out of print or otherwise unavailable materialalready in their collections for reference or preservation purposes.-141The 1986 report of the sub-committee on the Revision of Copyright titled, ACharter of Rights for Creators, takes the middle ground between these two stancesand allows copying for preservation but restricts copying for reference tosituations similar to inter-library loan. It recommends that:"The revised law should provide an exception to permit anarchival institution to make a copy of a work which is nototherwise available and which is already in its collection, forthe purpose of preserving the archival copy (and)an exception should be provided to permit an archivalinstitution to make a copy of a work where the latter has140Keyes and Brunet, 175.141The White Paper on Copyright, 43.70received a request for a copy of the work from an individualresearcher for the purpose of private research."142Clearly, the Canadian legislation needs to take into account the special needs ofarchives in drafting the copyright revisions and to include either very specific anddetailed exemptions, as in the American legislation, or more general exemptionsas found in the British and Australian legislation.143 The copying of archivalmaterial for preservation and security needs rarely, if ever, effects the economic ormoral rights of an author. 144 The American legislation has been in place foralmost twenty years, with a periodic review every five years, and there has beenno great outcry on the part of copyright owners that their rights are beinginfringed. The Canadian government might take this into consideration as well asthe lack of harm done to copyright owners by duplication for archival purposeswhen drafting the final revision to the Canadian Copyright Act.Testamentary DispositionThe British Act of 1956 created a special exemption for the transfer of copyrightin the case of physical disposition of a work in a will. Ordinarily, copyright canbe transferred only through a written instrument. The 1956 Act allows for thetransfer of copyright with the physical transfer of the material in a testamentary142Canada, Department of Consumer and Corporate Affairs, Recommen dations__ofthe.-11=_o_mn.^nthe Revision of Copyright: A Charter of Rights for Creators, (Ottawa: 1986), (hereafter A Charter ofRights for Creators), 13.143There have been repeated recommendations made to the Canadian government regarding this issue.See: Keyes and Brunet, Santoro, Laforce, Keon.144Ar1 exemption for the copying of works for research needs other than those mentioned by The White Paper,where the copy probably becomes the property of the archives and not the researcher, more properly belongs inthe section on fair dealing.71disposition.145 The legislators made the assumption that, unless expressly notedotherwise, a testator who makes arrangement for the physical transfer of acopyrighted work will also imply the transfer of the copyright. Archivistsexperienced in the acquisition of private documents know that, in most instances,the average donor is completely unaware of the existence of copyright in thedocuments he or she is donating, and that he or she is usually willing to transfer itwith the physical ownership of the material after the archivist provides anexplanation of the issues surrounding copyright.A clause regarding the testamentary disposition of copyright would be extremelypractical for the Canadian revision. It would clear up the many cases wherematerial is donated through a will to a library or archives but the copyright is notexpressly mentioned. Currently, the donated material is physically owned by thearchives but the copyright is owned by the heirs of the estate of the deceased. Itcan be an extremely cumbersome and time consuming task to determine who theliving heirs are and where they can be located in order to obtain copyrightpermission. This clause would greatly simplify the use of archival material, thusenhancing the benefit accruing to society through the increase of knowledge andculture without unduly harming the creator of the work.Both Keyes and Brunet and the White Paper on Copyright include an exemptionof this type in their proposals. "The devising of any unpublished material,protected by copyright, presumes devising of the copyright therein, unless acontrary intention is evidenced in the will."146145The 1988 Act (s 93) extends this section to include the bequest of sound recordings and films as wellas any material thing which may embody the work ( for example a master tape).146Keyes and Brunet, 73. See also The White Paper. 60.Term of Protection for Unpublished MaterialAs mentioned earlier, copyright for unpublished works in Canada currentlysubsists until publication and for a period of fifty years thereafter. The majority ofunpublished works in Canadian archives will never be published-- particularlyafter the death of the author (with the exception of a few famous figures).Therefore, this clause effectively creates an indefinite and often perpetual term ofcopyright protection for unpublished archival material, rendering the vast majorityof archives unusable.The United Kingdom and the United States both have created limited terms ofcopyright for unpublished materia1.147 The British Act of 1956 allows for thereproduction or publication of unpublished material provided that:"Where at a time more than fifty years from . . [when] theauthor of a literary, dramatic, or musical work died, and morethan one hundred years after the time. . during which thework was made,(a) copyright subsists in the work, but(b) the work has not been published, and(c) the manuscript . . is kept in a library, museum, or otherinstitution. . .the copyright. . . is not infringed by a personwho reproduces the work for purposes of research or privatestudy, or with a view to publication148147As will be discussed later, unpublished material is treated very differently from published works underthe Fair Dealing section.14802pyright Act 1956, s.7(6).72This unifies the legislation with respect to published and unpublished materialsand allows researchers to use material, well after the lifetime of the authors,wherein they and their heirs have been given a reasonable amount of time to reapthe economic rewards of their labors.The present Canadian system has not gone without criticism. Almost every articlewritten on Canadian copyright calls for the elimination of perpetual copyright inunpublished works. 149 However, as the ACA Copyright Committee has pointedout in its "Response to A Charter of Rights for Creators", while the suggestion oflimiting the term for unpublished works to the life of the author plus fifty is a greatimprovement on the present situation, it still leaves undetermined theunfortunately prevalent case of works with unknown or unlocateable authors. Thesection on term of protection for unpublished works must therefore include aclause which allows for the publication or use of works either fifty years after thedate of death of the author (for works with known authors) or one hundred yearsfrom the date of creation (for works of unknown authorship). This would provideample opportunity for the author and his/her immediate heirs to reap economicbenefit from his/her works while allowing the public to freely use any unpublishedwork after the fairly reasonable time period of one hundred years has elapsed.Crown CopyrightPresently, the Crown holds perpetual copyright in all the works produced by or forthe Canadian government. It has been suggested that this is too prohibitive given149See Dryden, LaForce, Keon, Keyes and Brunet, The White Paper, Santoro, The Isley CommissionReport on Copyright (Ottawa 1957).7374that the government is elected and funded by the citizens and is supposed to act intheir best interest. Section 11 of the Copyright Act of 1921 reads:"Without prejudice to any rights or privileges of the Crown,where any work is, or has been, prepared or published by orunder the direction or control of Her Majesty or anygovernment department, the copyright in the work shall,subject to any agreement with the author, belong to HerMajesty and in such case shall continue for a period of fiftyyears from the date of the first publication of the work."15°Keyes and Brunet have interpreted this to mean that, for published works, "theCrown holds an overall proprietary right exercisable at the Crown's discretion atany time and which could prevent use of material covered by the prerogative."151Furthermore it is uncertain whether the Crown is, in fact, bound by the CopyrightAct. Keyes and Brunet suggest that it is not. "Section 16 of the Interpretation Actprovides that the Crown is not bound unless an Act so provides; the CopyrightAct does not so provide. . . to what extent may the Crown use copyright materialof other if it is not bound by the Act?"152This is clearly an area that requires extensive revision. The State is no longerconsidered to be supreme above the people in a modern democratic society.Keyes and Brunet suggested that "Apart from any prerogative the Crown mightwish to retain, the Crown should not be in a different position from anyone elseunder the Canadian Copyright Act."153150Copyright Act 1921, S. 11.151Keyes and Brunet, 223.152thid.153Ibid., 224.The Charter of Rights for Creators suggests that:"The Crown . . . should be subject to the provisions of theCopyright Act. . . statutes, regulations and judicial decisionsshould be in the public domain. . . there should be nocopyright in government works except as follows:a) a moral right of integrity . . .b) works produced by a Crown agency . . .c) custom-made statistics and statistical works (to be sold tousers on a cost recovery basis)."Written submissions to parliament, legislatures, or public bodies ofinquiry should be in the public domain from the time of receipt.154The ACA Committee on Copyright has suggested that, since the Crown is neverending, some works created by, for, or under the direction of the Crown should beopen for research.155 However, the ACA proposal is not strong enough. Crownprerogative needs to be abolished for all except those categories of works outlinedabove by the Charter of Rights for Creators.Almost the opposite of the Canadian situation is found in the United States.There, all material created by, for, or under the direction of the government is inthe public domain from the day of its creation (with the exception of definedcategories of restricted material). It is assumed that, since the government is154A Charter of Rights for Creators, 3.155Interestingly, The White Paper (58) suggested that no revisions be made regarding Crown copyright.75elected and funded by the general public, all materials produced by it or under itsdirection should belong to the general public.Crown copyright in the United Kingdom is not as open as government copyrightin the United States but is a good deal less restrictive than in Canada. Worksunder Crown copyright which are subject to the 1988 Act follow a schedulesimilar to that for non-Crown materia1.156 Copyright for published works subsistsfor a period of fifty years from the date of publication. Copyright in unpublishedworks subsists for 125 years after the date of creation or, upon publication (if lessthan 75 years has elapsed), for a period of fifty years.While rather restrictive, this system is preferable to the present situation inCanada. There is no rational reason why the government should enjoy moreprotection against competition than the average citizen. It is agreed upon bycopyright scholars that protection should exist for a limited term in order that thepublic, as a whole, may benefit from increased knowledge and cultural experiencethrough use of copyrighted works. This topic will be discussed more fully inChapter Four.Term of Protection for PhotographsThe duration of copyright protection for photographs is currently fifty years fromthe date of creation of the original negative-- for both published and unpublished156The schedule for works created under the 1956 Act is somewhat more complicated: Acts ofParliament, Public Bills, Private Bills, Personal Bills and unpublished works, made by for or under thedirection of the House of Commons and the House of Lords, all follow a different schedule.7677works.157 This can create the situation where a book is protected by copyright forfifty years after the date of death of the author but the photographs in the book areprotected for a much shorter period, fifty years after the making of the originalnegative.158 There is no readily apparent reason why photographs should betreated any differently from the other members of the class of artistic works:paintings, drawings, sculptures, etc. Both the Keyes and Brunet Proposals and theWhite Paper recommend that the term of protection for photographs be extendedto fifty years from the date of death of the author in order to unify the term for allmembers of the class of artistic works.159The ACA copyright committee is against changing the present term of protection.It argues that, for many thousands of archival photographs, the date of death of the'composer' is extremely difficult to determine, whereas the date of creation can beestimated fairly closely, thereby freeing the photos for use by the public after areasonable term of protection is provided for the 'composer'. This is exactly thekind of balance that the legislation should provide. Although maintenance of theterm of protection at fifty years from the date of creation makes the act lessuniform and straightforward, it provides the correct balance between author'srights and user's rights. Complex social situations often require complexsolutions. The desire to have an Act that is streamlined and unified should notoutweigh the need to have an act that is both equitable and enforceable.157R.S.C.,1921, c. 30, s 10. See also Jill Jarvis-Tonus, "Copyright Considerations for PhotographicCollections Current Problems, Possible Reforms," Paper presented to the Ontario Archives Association,Toronto, 22 March, 1991. 158In the U.K. the term of protection under the 1956 Copyright Act was fifty years from the date of publication.The 1988 Act changed this to fifty years from the date the photograph is first made available to the public.159The White Paper, 56, Keyes and Brunet, 66, see also Dryden, Keon, La ForceOwnership of Copyright in PhotographsPhotographs have traditionally been treated as a class of their own, distinct fromliterary works. Originally there was some hesitation, on the part of the Courts, asto whether photographs were copyrightable, on the grounds that they are largely amechanical representation of reality. However, a copyright provision forphotographs first appeared in the United States in an Act of 1870, which becamesection 4952 of the Revised Statutes and is now Section 5(j) of Title 17 of theCode. This provision came before the American Supreme Court in the case ofBreistein v. Donaldson Lithographing Co.160 The works in question werechromolithographs of a circus performance. The Court, presided over by JusticeHolmes, held that, even though the lithographs were "drawn from life," there wasa sufficient amount of creativity and personal choice involved in the arrangementand development of the scene (choice of camera, lens, angle, etc.) to qualify theworks for copyright protection.This decision was later reaffirmed in a situation involving the photograph of astreet scene which included the New York Public Library on Fifth Avenue. TheCourt held that:"It undoubtedly requires originality to determine just when totake the photograph, so as to bring out the proper setting forboth animate and inanimate objects, with the adjunctivefeatures of light shade, position etc."161160Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 23 S.Ct. 298,47 L. Ed. 460 (S. Ct 1903).161Pagano v. Beseler Co., 234 F. 2d. 963 (S.D.N.Y. 1916).7879Once the copyright in photographs was established, the next important questionbecame: who is the first owner of copyright in photographs? The 1921 Canadianstatute assigned copyright ownership to the person who owned the negative at thetime the original negative was made.162 While this may have been an adequatedefinition eighty years ago, when photographic technology centered upon themaking of one large plate negative through wet chemistry, this definition of firstowner has caused a great deal of consternation in recent years. Due to the modemtechnology of photography, the original negative is no longer as crucial to thephotographic process. There is a large variety of photographic processesavailable, from albumin to Polaroid, where there is no original negative and yetthese images can be reproduced and copied.There is the additional practical problem of determining who owned the firstnegative when it was originally created. In the case of many photographs inCanadian archives, which were not necessarily acquired with all or any of therelated paper files, it can be impossible to determine who originally owned thenegative of the print at the time the photograph was taken.This cumbersome definition of the first owner of copyright in photographs hasreceived a great deal of criticism from copyright scholars.163 Keyes and Brunetwrite that "The Canadian Copyright Act does not deal with the subject ofownership clearly. . . he who takes the picture may or may not be the owner of thecopyright. "164 They suggest that, due to the recent advances in photographic162Copyright Act, 1921, s 9.163See Torno, 9.164Keyes and Brunet, 69.technology which allows the capturing of images without the use of wetchemistry, "ownership in a photograph vest in the person owning the material onwhich the photograph is taken."165 This is not a radical departure from the 1921definition. This change is parallel to the change made in the 1956 British Actregarding copyright in photographs, which also updated the ownership ofcopyright based on newly developed technology.In the 1984 White Paper on Copyright, the authors stated, with regard to the 1921Canadian Act, that "ownership of the physical embodiment of a photographicwork is itself insufficient criterion for establishing authorship." They recommendthat first ownership in photographs be assigned to "the person who composed thephotograph, e.g. the photographer." The authors state that "this is consistent withthe general principle of copyright law as expressed in section 12(1) of theCopyright Act that the author be the first owner of the copyright."The committee which wrote the Charter of Rights for Creators accepts therecommendations given in the White Paper, and states that "the ownership ofcopyright in photographs should vest in the person who composed the photograph[except for employees who make a work in the course of their employment. r166What has spurred this dramatic reversal of opinion in the seven years between theKeyes and Brunet proposal and the White Paper? As mentioned earlier some havesuggested that the copyright committee has been unduly influenced by pressure165thid., 70.166A Charter of Rights for Creators, 6.8081groups who are not and do not represent Canadians. 167 The answer may be foundin the Canadian tradition of patterning legislation on that of other Anglo-Saxoncountries.Both the American Act of 1976 and proposals which were later embodied in theBritish Act of 1988 contain the suggested revisions to the Canadian Act that havebeen described above regarding ownership of copyright in photographs. Both actsvest first ownership of copyright in photographs in the person who composed thephotograph (the term author is used in the United States legislation). 168As mentioned earlier, photography has changed a great deal since the 1921 Act.The creation of photographs is now much more complicated than it used to be.There may be many people involved in the creation of a photograph such as a setdesigner and several technicians, both in the taking of the photograph and indeveloping it. The technique of making photographs has changed dramatically.Every photograph is not necessarily produced from an original negative (Polaroidsproduce no negative) and the person who has made the largest economicinvestment in the photograph (in terms of time, money or creative energy) may nolonger be the person who owns the material on which the photograph is taken.In the area of commercial photography (as in software development) it is often thecase that one person formulates and develops an idea for a work while most if notall of the technical work is carried out by a staff technician. In the Proceedings of167Vader.168The American legislation (1790 and 1802) has always vested copyright ownership in photographs inthe author of the photo. The English legislation of 1911 vested ownership in the person who owned thenegative at the time the negative was made. The 1956 Act amended this to the person who owned thematerial on which the photograph was first made.82the Subcommittee on Copyright Revision, the example is given of a popularKodak advertisement in which several infants of different nationalities appear inone long photograph promoting color film. Donald Spring, executive director ofthe Photo Marketing Association, states that one person in the creative division ofKodak came up with the idea, someone else selected, dressed, and positioned thechildren while yet a third actually took the photograph169. In order to preserve themain intent of copyright, that is to encourage Canadians to create intellectualproperty, first ownership of copyright should reside in the person whose willcaused the work to be created-- the diplomatic definition of author presented inChapter Two. In this case the person whose idea it was to create the photographwould own copyright (ignoring for the moment the fact that he/she produced thework as part of his/her employment). The rather awkward phrase "composer ofthe photograph" in the case cited above would presumably award copyright to theperson who dressed and positioned the infants-- not the person who expended themost creative effort in bringing the work to market-- an assignment which wouldclearly violate the primary goal of all copyright legislation.Therefore, in order to provide encouragement for Canadians to create intellectualproperty, the first owner of copyright in photographs (as well as in textual works)should be the person whose will caused the work to be created-- not necessarilythe composer or the actual photographer.In addition to providing a definition of author for photographs which is moreclosely aligned with the underlying spirit of copyright, the incorporation of thisclause into the photographic (and artistic works) section would unify the169Proce,edings of the Committee on the Revision of Copyright, 15:73.83assignment of rights across all categories of works. The determination of the firstowner of copyright should not rely upon the medium in which the work wascreated. This is an artificial distinction necessitated by what must have beenconsidered in 1921 as significant differences between photographic and textualworks. There is, however, no conceptual difference between the person who isprimarily responsible for the creative impulse behind a photograph, a sculpture ora novel.Copyright in InterviewsThis is an area of copyright that can have serious results for archives whichpreserve oral history interviews. As has been noted by Corrado Santoro andothers,170 the current statute makes no explicit mention of copyright ownership inoral interviews. This issue has been decided in the United States, not by statute,but by a policy of the Copyright Office. The Compendium of Copyright OfficePractices (1984) states that:"A work consisting of an interview often containscopyrightable authorship by the person interviewed and theinterviewer. Each has the right to claim copyright in his orher own expression in the absence of a valid agreement to thecontrary."1 71Quite equitably, both the interviewer and the interviewee hold copyright intheir own expressions. However, the situation is notably different in Canada.170Santoro, "An Update," 118, The White Paper, 30.171I R. Bernstein, "Subject Matter of Copyright, and Jurisdiction," in Current Developments inCopyright Law 1986, 82.84Under the 1921 statute, copyright in audio works (records or perforated rolls) isvested in "the person who was the owner of the original plate at the time when theplate was made." 172 Interviews are not specifically mentioned. This treatmentparallels that established for photographs. Protection in audio works (andphotographs) extends for "fifty years from the making of the original plate fromwhich the contrivance was directly or indirectly derived."173In complying with the emphasis on vesting rights with the creators of works, theCharter of Rights for Creators recommends that the first owner of rights in audio-visual works should be changed to "the person principally responsible for thearrangements undertaken for the making of the work."174 Because this sectiondoes not refer specifically to interviews but instead to all audio-visual works it isnecessarily broad. The section must allow for complex employment situationswhich may involve several employees or commissioned works.The ACA Committee on Copyright suggests that:"Oral history interviews and their accompanying edited transcriptsbe specifically mentioned in the revised Copyright Act withcopyright vesting in the interviewer, subject to any agreement to thecontrary;that for complex professional productions involving many people,the determination of who owns the copyright be better defined."175172R.S.C., c.30, s.11173Ibid.174A Charter of Rights for Creators, 30.175Santoro, "An Update," 118.85While it may not be necessary to elucidate the treatment of oral histories in thestatute (alternatively, the distinction could be provided in another form such as theAmerican example of the Copyright Office Compendium given above) thissuggestion is at once both too specific (the first clause) and too vague (the secondclause). Oral histories and transcripts are no different from other interviews ortranscripts, and do not require specific statutory treatment. The statute cannotenumerate special treatment for every single type of work which might possibly becreated. Instead, it should attempt to define broad categories and classes of worksusing functional characteristics rather than relying upon media or intellectual formas the sole determining factors.Are interviews really that different from other audio-visual works? They can becreated under both simple and complex employment situations-- communicationsnetworks hire an interviewer, a corporate executive decides who should beinterviewed, a team of researchers do all the necessary background work, someoneelse edits the tape, yet another person produces the transcript. Should the firstownership of rights automatically devolve to the person who owned the substrate(plate, tape or disk) on the which the interview was recorded?While the process of creating an interview can be similar to that of other audio-visual works, there are nevertheless two distinct parties involved-- two juridicalpersons (at least) are responsible for the content of the interview. While the setup, questions and editing can be determined by the interviewer (or producer) thecontent of the answers is wholly subject to the will of the interviewee. Interviewsare unlike other audio works in that there are two distinct wills who cause theexpressions in the work to be created. Interviews are really conversations-- boththe interviewer and interviewee use creative thought to shape the content of theword produced. They are really works of joint authorship and therefore bothinterviewer and interviewee should each hold copyright in their own uniqueexpression.Again the definition of author as discussed above for photographs, which assignscopyright to the person whose will caused the work to be created would remedythis situation. In simple situations where an interview is undertaken and fundedby the same person, copyright should be assigned to the interviewer andinterviewee in their own unique expressions. For more complex situations theownership of the interviewer's rights would probably devolve to the producer. 176Works Made For Hire: Works Created by Independent Contractors andEmployees A further complication to the first ownership of copyright is works which aremade by contractors and employees as presented by the Kodak case describedabove. The ownership of copyright in this class of works has been the subject ofmuch discussion and litigation in recent years. Traditionally, in England andCanada, ownership of copyright in these works vested in the commissioner and theemployer. However, bureaucratic organizations and employment contracts are notas straightforward as they were in the past. Many people today are free-lanceprofessionals and are employed for specific projects or contracts, rather thanthrough full time permanent employment. This is often due to the huge increase in86176See the discussion of Hemingway v. Random House included in the section on fair dealing for an interestingbut exceptional discussion of copyright in oral conversations.cost a company incurs when it provides complete benefits (insurance, holidaypay, sick leave etc.) to all of its full time employees.177Society and the work force has changed a great deal since the writing of the 1921Act. There has been an overall trend in the recent revisions made to British,American and Canadian legislation which is a reflection of the evolution ofmodern society. This movement in the legislation focuses attention on the personwho is largely responsible for the actual creation of the copyrighted work. Theaddition and amplification of an author's moral rights, the change of ownership ofcopyright in photographs to the photographer, and the vesting of ownership ofrights in commissioned works in the creator all reveal an increased interest on thepart of society to protect the actual creators of works rather than obscure personssuch as the owner of the medium on which a photograph was produced or thecommissioner of a work.This is a reflection of modern society, which no longer follows the simpleemployment arrangements of master/ servant or master/apprentice, where skilledemployees were few and most workers simply carried out the desires of theirmasters with little thought to their individual rights. The pool of skilled labor hasincreased dramatically in the last seventy years, with many modern employeeshaving a great deal of responsibility and freedom in their everyday work routine.The organization of businesses has changed from a steep pyramid with oneemployer making most of the decisions which are carried out by many. Today,businesses have fewer layers of managers and supervisors and more people177Lee Iococca states that "high wages are not the real problem [in the car industry] . . . the real problemlies in all the fringe benefits. Chrysler, Ford and GM are now paying $3 billion a year just for hospital,surgical, medical and dental insurance." Lee Iococca with William Novak, Iococca: An Autobiography(New York: Bantam Books, 1984), 304-306.87making significant decisions and assuming responsibility for those decisions.Gone are the sweatshops of old where hundreds of unskilled laborers toiled forhours over mundane, repetitive tasks with little creativity and no latitude forindividual thought.These changes can be clearly seen in the recent revisions made to Copyright Lawsgoverning Works Made for Hire. In the 1921 Canadian Act, first ownership ofcopyright in works made for hire vested in the person who ordered the work andpaid valuable consideration for it-- the commissioner or the employer. 178 Keyesand Brunet, following the recommendations of the Isley Commission, propose thatthis clause be maintained as written and "should extend to all literary, dramatic,musical and artistic works that are commissioned." 179 They go on to state that"certain views expressed to the Department regarding [this section] stressed thatownership should in all cases vest in the creator, and that it should be theresponsibility of persons commissioning the works . . . to ensure, by contract, thatall the rights they need are acquired." While they are willing to grant that thisview has a "simplistic logical appeal" they maintain that the "absence of astatutory presumption in favor of commissioners and employers would result in aspate of contract and collective agreements incorporating clauses to the oppositeeffect." 180As was the case for the ownership of copyright in photographs discussed above,the White Paper and the Charter of Rights for Creators reverse the proposals made178Copyright Act 1921, c.30, s.13(2).179Keyes and Brunet, 70.71.8889by Keyes and Brunet, and recommend that the section on commissioned works, 12(2), be repealed and that the revised Act provide that "subject to an agreement tothe contrary the author of any work is the initial owner of the copyright therein,notwithstanding the fact that the work was commissioned." 181 The issue ofcopyright in works made by employees was left open for discussion. 182The British Act of 1988 also includes this change. The ownership of copyright incommissioned works vests initially with the creator rather than the commissioner.If a commissioner wishes to obtain rights to a work he or she commissions he orshe must provide a written contract which states these changes from the statutoryregulations. 183The hesitation expressed by Keyes and Brunet about the results of removing astatutory presumption in favor of commissioners and employers can be understoodby considering the cases that have recently been heard in the United States.Without a clear statutory statement in favor of commissioners and employers, theCourts have had to make decisions about works for hire on a costly, timeconsuming, case by case basis. Indeed, these cases reveal that the section onworks for hire in the 1976 Act is not nearly as black and white as the statute maymake it seem. There is a great deal of grey area surrounding the definition of awork for hire versus work made in course of regular employment. In the United181The White Paper, 31.182See also Tomo, 39-57. Tomo believes that ownership should always vest in the author, regardless ofwhether the work was created by an independent contractor or an employee in the regular course of hisemployment. This is a radical departure from other copyright revision proposals and from the legislationof other Anglo-Saxon countries..1831t is uncertain what the results of this change will be. The 1988 Act came into effect in 1989. This sectionhas not been in use long enough to have developed a very extensive history of litigation.90States, this complex area has gradually evolved into a determination of the amountof control imposed by the commissioner upon the creator and, more recently, hasrelied upon the well defined law of agency to provide definition of employer,employee and independent contractor. The courts have tended to vest the firstownership of copyright in commissioners who have imposed some sort of controlupon the creation of the work.The 1976 Act defines a works made for hire as:"(1) a work prepared by an employee within the scope of hisor her employment; or(2) a work specially ordered or commissioned for use as acontribution to a collective work, as a part of a motion picture• . as a translation, as a supplementary work, as a compilation,as an instructional text, as a test, as answer material for a test,or as an atlas. ."184The Act vests first ownership of copyright in a work made for hire in the employeror person for whom the work was prepared:"In the case of a work made for hire, the employer or otherperson for whom the work was prepared is considered theauthor for purposes of this title, and, unless the parties haveexpressly agreed otherwise in a written instrument signed bythem, owns all of the rights comprised in the copyright." 185The question before the courts has been whether section 101 should be interpretednarrowly so that only those works which fit the detailed list of works (part of acollective work, part of a motion picture, a translation, . . .) are to be considered184Copyright Act 1976, s. 101.185Ibid., S. 201(b).91Works for Hire (a reading similar to the proposals contained in the CanadianWhite Paper), or whether this section should be interpreted broadly in thetraditional sense of Work for Hire, wherein all commissioned works and worksmade by employers have copyright vested in the commissioner and the employer.In the 1984 case of Aldan Accessories Ltd. v. Spiegat Inc., which was heard before theSecond Circuit Court of Appeals, Aldon Accessories commissioned a series ofsmall statuettes to be manufactured by a company in Taiwan.186 Spiegal Inc.ordered the statuettes from the Taiwanese company and sold them through theircatalogue business. Aldon Accessories claimed that the statuettes were works forhire and that they, as commissioners, owned first copyright in the works. One ofthe partners in the firm had spent a fair amount of time (three days) supervisingand directing the work of the Taiwanese manufacturers, rejecting and suggestingchanges to the design, although he did not in fact make the drawings or theprototype on which the statuettes were made.Spiegal Inc. claimed that the statuettes were not works made for hire under section101 of the 1976 Act and therefore copyright was owned by the manufacturer.Spiegal had therefore not infringed copyright by ordering statuettes from theTaiwanese firm.The Court of Appeals agreed with the trial judge's instruction that:"A work for hire is a work prepared by what the law calls anemployee working within the scope of his employment.186See United States Patent and Trademark Office, United States Patent Quarterly, (Washington D.C.:Bureau of National Affairs Inc., 1984), in William Patry, "Works Made for Hire: Crisis in the Courts,"Current Developments in Copyright Law 1988), 177-268.92What this means is, a person acting under the direction andsupervision of the hiring author, at the hiring author'sinstance and expense. It does not matter whether the for hirecreator is an employee in the sense of having a regular jobwith the hiring author. What matters is whether the hiringauthor caused the work to be made and exercised the right todirect and supervise the creation."187The Court cited several other cases where it was found that "if an employersupervised and directed the work an employer/employee relationship could befound even though the employee was not a regular or formal employee."188The Court also turned to the legislative history of the Statute to try and determineif Congress intended for this new clause to substantially alter the previous caselaw, which was shaped by the 1909 statute and stated that copyright in worksmade for hire was vested in the employer and commissioner. The Court foundthat "nothing in the 1976 Act or its legislative history indicates that Congressintended to dispense with this prior law applying the concepts of 'employee' and'scope of employment'."189In a more recent case, Easter Seal Society v. Playboy Enterprises et. al, the U.S. Courtof Appeals found that the Aldon Accessories interpretation of "actual control" isI87Ibid., 183.188Ibid., see also Epoch Producing Corp. v. Killiam Shows Inc., 522 F. 2d 737, 187 USPQ 270, (2d Cir.1975), cert. denied, 424 U.S. 955, 189 USPQ 256 (1976); Picture Music Inc. v. Bournew, Inc., 457 F. 2d1213, 173 USPQ 449 (2d Cir.) cert. denied, 409 U.S. 997, USPQ 577 (1972); Donaldson Publishing Co.v. Bregman, Vocco & Conn, Inc., 253 F. Supp. 841 (S.D.N.Y. 1965), rev'd 375 F. 2d 639, 153 USPQ 149(2d Cir. 1967) cert. denied, 389 U.S. 1036, 156 USPQ 719 (1968).1895ee Aitken, Hazen Hoffman, Miller, P.C. v. Empire Construction Co., 542 F. Supp. 252, 257-58, 218USPQ 409,413-14 (D. Neb. 1982). The Act itself does not define the terms emplyer, employee.93flawed with respect to some areas of the work for hire doctrine.190 The courtstated that any commissioner ('buyer') who exercised control over the creation of awork could be considered a co-author and thus would be entitled to sue a thirdparty for infringement, despite any ruling on whether or not the work was madefor hire. Secondly, the Court stated that the Aldon Accessories interpretationcreates a situation that is difficult for buyers and sellers (the physical creators of awork) to predict, thus making business arrangements "exceedingly difficult."191Thirdly, the Court stated that this interpretation does not eliminate the need for alegal definition of employee and independent contractor. By simply establishingthe test of actual control, this interpretation creates the possibility that a regularemployee who in the course of his employment creates a work with a minimum ofsupervision is considered an independent contractor, and thus the copyright in thework would vest in him rather than in his employer, which is a direct contradictionto section 101 of the Act. Moreover, the Court found that the Aldon Accessoriesdecision is really more of an interpolation than an interpretation since the 'actualcontrol' language is not found anywhere in the statute.The Court of Appeals thus turned to the well established law of agency to helpsolve the confusion surrounding works for hire, where a servant is "subject to theemployer's right to control the manner of performance."192 The Court stated thatthis was a more acceptable interpretation since it would allow for greater190Easter Seal Society for Crippled Children and Adults of Louisiana, Inc., v. Playboy Enterprises, et. al.,no., 85-3741, (U. S. Crt of App. 5th Cir. 1987) in Patry, "Works Made for Hire: Crisis in the Courts,"218.191Ibid., 215.192Ibid., 201.94predictability for commissioners, creators, employees and employers. It wouldalso explain section 101(2) as a special instance case where independentcontractors may sign away their copyright to commissioners.193 Thisinterpretation bypasses the potential problem created by Aldon Accessories wherecopyright could vest in a regular employee whose work was not supervised.Moreover, the Court states that this interpretation provides a certain moralsymmetry, in that a commissioner is a considered statutory author if and only ifhe/she is responsible for the negligent acts of the creator of the work (a master isresponsible for the acts of his/her servants).194Thus, it can be seen that, when the statute is changed to conform to the changingnature of the work force, and copyright is vested in the creator of a commissionedwork rather than the commissioner, a crucial dichotomy is created between worksmade in the course of employment (copyright vests in the employer), and worksmade by independent contractors (copyright vests in the contractor). Theemphasis in the court room has then naturally shifted towards refining thedefinitions of employee, employer, and independent contractor.With the 1988 change in the work made for hire clause, the United Kingdom alsoexperienced the same confusion surrounding the definitions of a work made in thecourse of employment (a contract of service) and a work made by an independentcontractor. Here, as in the United States, cases must be decided on an individualbasis. Several tests have been put forth for the determination of whether a work ismade in the course of employment versus independent contract, although the193Although it is unclear why anyone would need special statutory permission to sign away theircopyrights.194Ibid., 221.95British courts have tended to rely heavily upon the degree of control exercised bythe employer as in the Aldon Accessories ruling in the United States.195In Ready Mix,ed Concrete Ltd., v. Minister of Pensions and National Insurance, JusticeMcKenna stated that a contract of service exists if the following conditions aremet."(i) The servant agrees that in consideration of a wage orother remuneration he will provide his own work and skill inthe performance of some service to his master.(ii) He agrees, expressly or impliedly, that in the performanceof that service he will be subject to the other's control in asufficient degree to make the other master. . . but the use ofthe word sufficient implies that the degree of controlnecessary will still fluctuate from case to case.(iii) The other provisions of the contract are consistent withits being a contract of service."196A more recently emphasized characteristic of works made in the course ofemployment has been the "mutuality of obligation" test. Judge Dillion inNethermere Ltd., v. Taverna, stated that, in order for a contract of service to exist"There must be mutual obligations on the employer toprovide work for the employee and on the employee toperform the work for the employer. If such mutuality is notpresent, then either there is no contract at all or whatevercontract there is must be a contract for services or somethingelse, but not a contract of service."197195Lester and Mitchell, 78.196Ready Mixed Concrete Ltd., v. Minister of Pensions and National Insurance, 2 Q.B. 497 (1968), 2W.L. R. 775 (1968), 1 All. E.R. 433 (1968), 4 K. I. R. 132. in Lester and Mitchell, 78.197Nethermere Ltd., v. Taverna,I.R.L.R. 240 (1984) in Lester and Mitchell, 80.The British cases have not relied upon the law of agency, as suggested by theUnited States Court of Appeals, but rather have chosen a more flexible, if lesspredictable, path of individual, case by case examination, and the application ofseveral guidelines or tests which the courts may or may not choose to follow.Neither the British nor the American statutory revision has cleared up the complexand often unfair situation surrounding works made for hire. Without a clearstatutory presumption in favor of commissioners or any satisfactory statutorydefinition of employer, employee, and independent contractor it is necessary torely upon the time consuming and often contradictory decisions of the courts. Asstated by D. Lester and P. Mitchell, "in these circumstances one can only pray fora sensible and practical approach by the courts." 198Thus, it can be seen through the American and British experience of copyrightlitigation that the doctrine of Works Made For Hire began with a traditionalcommon law definition very similar to that provided by diplomatics (an author isthe person whose will caused the work to be created), which has become lesswidely applied in recent years. In the early twentieth century, 'author' or'copyright owner' was interpreted to mean the person who took the greaterfinancial risk in bringing the work to market: historically the stationer orpublisher, later the employer or commissioner. Recently, we have seen increasedemphasis on the worker (note the increase in strength of labor unions) andincreased emphasis on the individual in general (the recent growth of democracyversus autocracy). The Work for Hire doctrine has accordingly shifted away from198Lester and Mitchell, 64.9697the automatic presumption that he who pays for a work is the statutory author,towards an interpretation which considers whether the commissioner actuallyexercised control over the creation of the work (Aldon Accessories, Ready MixedConcrete), and a determination of first owner of copyright based on the definitionof master and servant found in the well established law of agency.The White Paper on Copyright and The Charter of Rights for Creators follow thetrend that has taken place in British and American legislation. The Charterrecommends that:"First ownership of copyright should be vested in anemployer in the case of works created by employees in thecourse of employment, subject, as now, to any agreement tothe contrary. .. [and] the copyright in commissionedengravings, photographs and portraits should vest in theauthor." 199The Charter does not define author, employer or employee but rather calls for aclarification of this in the revision.However, as revealed by the American and British litigation, the statutoryvestment of the ownership of copyright in commissioned works in the person whocreates the work is not a solution to the multitude of problems found in the currentWork Made For Hire doctrine. Vesting ownership in the physical creator simplyincreases the workload of the courts in their attempt to define a work made for hireas opposed to a work made in the regular course of employment.199A Charter of Rights for Creators, 4.98It is preferable instead to expand the definition of author as first owner ofcopyright to works made for hire rather than create a rigid statutory presumptionin favor of either employee or employer. Works made for hire are by definitionworks made under contract for valuable consideration. Diplomatics tells us thatthe author of a contract is both parties-- commissioner and cornmissionee. "Anaction may be bi- or multilateral, that is, may involve reciprocal obligation of twoor more parties: in such case each party will be author and addressee of therelated document."200 The application of this definition of author concomitantwith the already well established notion of author as first owner of copyrightwould result in a situation of shared rights. Both commissioner and commissioneewould statutorily have first ownership of rights. This would place the burden ofdetermining sole ownership on the work for hire contract, otherwise the rights--and profits-- would be divided equally between commissioner and conunissionee.While some may argue that this does not solve the inherent conflict betweencommissioner and commissionee (it merely transfers it to another legalinstrument) it does more clearly reflect the present complex state of affairssurrounding works made for hire. Vesting first ownership of rights statutorilywith the commissioner does a disservice to those commissionees who providemost or all of the creative thought and energy which goes into a work. Vestingfirst ownership statutorily with the conunissionee deprives the initiator of the idea(the commissioner) of any economic reward for a work that without his/heroriginal motivation would most probably never have been created. The onlystipulation which must be added to this section is that the act in consideration mustbe a creative act-- one directed towards a work which requires creative input ofsome sort. A commissionee who creates a work simply by carrying out a set of200Duranti, "Diplomatics: Part III," 6.99orders or instructions should not be statutorily vested with copyright.201 Thiswould direct the emphasis of any future litigation towards determining who hadcreative control over a work-- was the commissionee simply carrying out the plansof the commissioner or did he/she influence the creative process which lead to theproduction of the work.The vesting of first ownership of copyright in both commissioner andcommissionee does not conflict with either the spirit of the traditionalinterpretation of this section or the growing trend towards assigning rights to theactual physical creators. In fact, it is exactly this that the courts have been tryingto determine: who is responsible for the creative work-- conceptualizing,visualizing and developing the idea behind the work in order to eventually bring itto market? Indeed, lobby groups who claim to represent creative artists in Canada,should support legislation which assigns copyright equally to those responsible forthe creative effort behind a work rather than a rigid assignment of rights to theperson who simply physically created the work.Vesting copyright equally in commissioner and commissionee for creative acts hastwo advantages. Firstly, it will force the negotiation of copyright ownership intothe sphere of contract agreement, which is much more preferable than having toresort to litigation after the fact. Secondly, it will provide a clear and predictablesituation for all parties involved in the creation of a work. Both commissioners2010ne example is the bronze sculpture which is to reside outside the Canadian embassy in WashingtonD.C.. The sculpture was designed by Haida artist, Bill Reid. However, the actual physical creation ofthe work was commissioned out to a foundry in New York. The foundry simply carried out the artist'sinstructions.The overly simplistic and unnecessarily rigid proposal made by A Charter of Rights forCreators could possibly vest copyright in the foundry.100and commissionees will know what they will have to prove in order to be assignedcopyright-- creative control over the work.Fair Dealing202The section of copyright law related to fair dealing has been the subject of a greatdeal of litigation, discussion and heated debate in recent years. It is also an area ofcopyright legislation that is of paramount importance to archivists and librarians.Archives and libraries exist primarily to make their holdings available andaccessible to the public. Without a clear statement of the limitations on acopyright owner's exclusive rights (right to first publication, distribution, vending,performance, display etc. of a work), librarians and archivists exist in a hazy,uncertain atmosphere of doubt and fear-- never knowing whether or not they arecomplying with or violating the law when they permit researchers to use and copyworks, or provide users with copies. With the modern advances in copyingtechnology (fax machines, computer downloading through modems and opticalscanning), this has become a problem of increasing magnitude: researchers areaware of the new technologies available and want to take advantage of them.Fair dealing is an attempt to ease the fundamental tension that exists between theprotection of the rights of the copyright owner and the enhancement of theknowledge and cultural awareness of the general public through use of2020ne subtle yet crucial difference between U.S. and Canadian law is reflected in the terminology. In theU.S. fair use is interpreted as an exemption from the monopoly created by copyright (ie. no infringement hasoccurred) whereas in Canada fair dealing can only be used as a defense to an infringement that has alreadyoccurred. The term fair use will be used when dealing with U.S. legislation.101copyrighted works.203 As early as 1785 this fundamental problem was summedup by Lord Mansfield in his opinion in Sayre v. Moore:"We must take care to guard against the two extremes equallyprejudicial; the one that men of ability, who have employedtheir time for the service of the community may not bedeprived of their just merits and reward for their ingenuityand labor; the other that the world may not be deprived ofimprovements nor the progress of the arts retarded."204As our society moves gradually away from a manufacturing base and increasinglybecomes a service society, information becomes its most vital and valuablecommodity. Fair dealing has consequently become a hotly debated section ofcopyright legislation. Judge Learned Hand stated in his 1939 opinion in Dedar v.Samar GoCciwyn, Inc. that fair use issues are "the most troublesome in the whole lawof copyright."205Fair dealing was originally a judicial doctrine concerning the abridgement of awork rather than the statutory exemption (or defense against infringement) it istoday. In 1740, Lord Chancellor Hardwicke, in his decision on a bill for aninjunction to stay the printing of a legal treatise, remarked that, "abridgementsmay with great propriety be called a new book, because. . .the invention, learning,and judgement of the author is shewn in them, and in many cases are extremely203For an excellent discussion on the economic motivations behind these two opposing views see LeonSeltzer, Exemptions and Fair Use in Copyright (Cambridge: Harvard University Press, 1978).204Sayre v. Moore, 1 East 361 n. 102, Eng. Rep. 139 n. 16-18 (K.B. 1785), in Seltzer, 13.2051)ellar v. Samual Goldwyn, Inc., 104 F.2d 661 (2d Cir. 1939), in Patry,The Fair Use Privilege ), 7.102useful. . . "206 In this case, Chancellor Hardwicke found for the defendant on thegrounds that the abridgement contained enough new comment and criticism as tobe considered a work in its own right. The defendant did not merely colourablyshorten the original work so as to avoid infringement.This came to be known as the 'doctrine of fair abridgement' and we can see in itthe early conceptualization of the defendant's purpose and intent as an acceptabledefense to the infringement of the copyrighted work: if the author intends to usepart of a copyrighted work in the creation of his own original work, the courtswould look upon this more favorably than if he copied the work simply to resell itwithout the addition of his own thoughts or labors. There was also a concern thatthe knowledge to be gained from abridgements which added "invention, learningand judgement" would be lost if these works were simply, as an entire class,considered to be infringements.In 1752, Lord Hardwicke strengthened his earlier opinion by stating that theabridger must make a productive use of the work, not simply a passivereproduction of it with a small amount of his own work simply attached at the end-- despite any arguments made by the defendant of public utility or public benefitto be derived from the abridgement. He presented one specific case in which "thenotes were colourably abridged or taken from [the original work], and onlytwenty-eight added by [the defendant]. "2072062 Atk. 141, 143 (1740) (No. 130). Accord: Bell v. Walker, 1 Bro. C.C. 452 (1785); Butterworth v.Robinson, 5 Ves. Jun. 709 (1801), in Patty, The Fair Use Privilege ), 8.207Tonson v. Walker, 3 Swans. (App.) 672, 679 (1752) in Patty The Fair Use Privilege. 7.103In the 1761 case of Dods fey v. Rinnersiey, which dealt with a work that was copiedfor the purpose of reproduction in an abridged form, we can see the roots of thedefense of fair use for the purpose of criticism and review and the court's initialconcern for the infringing work interfering with the sale of the original. Thedefendant claimed that "it was useful to print extracts of new books in magazines,&c., without asking leave of the authors." The court found for the defendant onthe grounds that the work had previously been published by the plaintiff inabridged form and therefore the defendant's work could not harm the economicreturn of the original which had been sold prior to the abridgement created by thedefendant. The judge stated that "what I materially rely upon is, that it [thedefendant's abridgement] could not prejudice the plaintiffs, when they had beforepublished an abstract of the work in the London Chronicle. "208 As will bediscussed later, this concern for the economic return due to the author of theoriginal work has recently developed into a broader consideration of all possiblefuture and potential works the author might wish to produce.In the 1770 case Macklin v. Richardson, the acceptability of copying for the purposeof review was enlarged upon. The defendant had transcribed and then publishedin its entirety a play which was being performed at the time but had yet to bepublished by the author. In his judgement, Lord Commissioner Smythe wrote:"this is not an abridgement but the work itself."209 The court's decision revealsthe budding concept that a work will be found as an infringement if it supplantsthe market for the original copyrighted work, even though it may be written andpublished in the guise of a review or for the purpose of criticism.2081n Fatly, The Fair Use Privilege. 92091bid.104This case also deals with the unlicensed use of unpublished material. The workhad been performed but was not technically considered to be 'published'. LordCommissioner Bathurst found "great injury" in the printing of the work before theauthor had an opportunity to publish it himself. This consideration of the nature ofthe copyrighted work, either published or unpublished, has become a veryimportant factor in present day fair use cases. The nature of the copyrighted workis of primary interest to the courts and may, in isolation of other factors, determinewhether or not a work is seen as infringing.Fair use (or the absence of aninms furandi) supplants the notion of 'fair abridgement'in the 1803 case, Cary v. Kf.arsiey. In this case, the defendant had taken theprimarily factual work of the plaintiff, The Book of Roads, added to it, and madesome corrections. In his judgement, Lord Ellenborough wrote:"That part of the work of one author is found in another, isnot itself piracy or sufficient of support an action; a man mayfairly adopt part of the work of another; he may so make useof another's labours for the promotion of science, and thebenefit of the public; but having done so, the question will be,Was the matter so taken used fairly with that view, andwithout what I may term the animus furandi? . . while I shallthink myself bound to secure every man in the enjoyment ofhis copyright, one must not put manacles on science."210Lord Ellenborough closely examined the purpose and use of the allegedlyinfringing work. Because the work was largely factual and its correction,enlargement, re-arrangement and re-issue was very beneficial to the general2101bid., 10public, Ellenborough directed the jury to consider whether the work was "fairlydone with a view of compiling a useful book for the benefit of the public, uponwhich there has been a totally new arrangement of such matter,-- or takencolourably, merely with a view to steal the copyright of the plaintiff?"211 Theplaintiff later withdrew his suit.Science and the Arts are disciplines which build upon themselves. A sweepingprohibition against the use of earlier copyrighted works might greatly impede theflow of knowledge. This is exactly what copyright attempts not to do. Whileprotection of the author's economic investment in the creation of the work is ofgreat importance so is the widest possible dissemination of information to thegeneral public.However, the good intention behind the use of copyrighted works (to furtherscience and the arts) is not superior to the effect the use may have upon theoriginal work. As Lord Ellenborough later wrote, "the intention to pirate is notnecessary in an action of this sort; it is enough that the publication complained ofis in substance a copy, whereby a work vested in another is prejudiced."212Herein we can see the development of the concept of fair use. If a work is notmerely copied but is used in the creation of a second work which is itself a furtherdevelopment of knowledge and culture (although it may rest upon the discoveriesobtained in the original), the second work, if it does not supplant the market of theoriginal, has traditionally not been found to be an infringement.211Thid.105212Thid., 12.106An additional aspect which has become crucial in the determination of whether ornot a work is infringing the copyright is the amount and quality of what is takenfrom the original work. The first notions of this are found in the 1836 caseBramweff v. Harcomb, where the Lord Chancellor wrote:"When it comes to a question of quantity, it must be veryvague. One writer might take all the vital part of another'sbook, though it might be but a small proportion of the book inquantity. It is not only quantity but value that is alwayslooked to. It is useless to refer to any particular cases as toquantity."213This case reveals what has since become one of the fundamental aspects of fairuse. Quantity is not of primary importance. The quality or value of what is takenis far more important than the precise amount. This concept has figured large inmodern day litigation and the statutory definition of fair use.In 1843, Justice Story stated that some uses are "justifiable use" in cases of "fairabridgement" or "fair and reasonable" criticism. He wrote that, when consideringcases of infringement, one must consider "the nature and object of the selections,the quantity and value of materials used, and the degree in which the use mayprejudice the sale or diminish the profits, or supersede the objects of the originalwork."214Thus, we can see the early development of four important elements of the fair usedoctrine: the purpose and intent of the use (was it productive and furthered the213Th1d.. 15.214Shelton, 10.107growth of knowledge, or was it simply meant to supplant the original); the effectof the use upon the market of the original; the nature of the original (published orunpublished); and the value or quality of the portion which is taken.Despite over two hundred years of judicial opinions and hundreds of reports,reviews and papers on the subject, fair dealing has yet to be conclusively definedby statute in Canada, the United States or England. In fact there has been a greatdeal of reticence on the part of the legislative bodies to create a statutory definitionof fair dealing. The United States Senate committee on copyright stated that:"There is no disposition to freeze the doctrine in the statute,especially during a period of rapid technological change.Beyond a very broad statutory explanation of what fair use isand some of the criteria applicable to it, the courts must befree to adapt the doctrine to particular situations on a case-by-case basis."215As noted by the committee, one of the crucial stumbling blocks towards anycohesive definition of fair use has been the recent rapid emergence of new copyingtechnology.216 Copying a work entirely by hand for private use in the nineteenthcentury is a very different activity in comparison to the accurate, copious,voluminous and rapid reproduction that can be effected today.Section 107 of the United States 1976 Copyright Act, the section on fair use, isintended to "restate the present judicial doctrine of Fair Use not to change, narrow,215U.S. Congress, House, General Revision of the Copyright Law, 94th Cong., 2nd sess., 1976, HouseReport no. 94-1276, in Arthur J. Greenbaum, "Fair Use: Educational and Library Photocopying,"Current Developments in Copyright Law 1977, 140.216Seltzer, 21.108or enlarge it in any way."217 It states that copying for purposes such as criticism,comment, news reporting, teaching, scholarship. or research, is not aninfringement of copyright. This section then lists the following factors to be usedas guidelines by the courts in determining fair use cases:"1) The purpose and character of the use, including whethersuch use is of a commercial nature or is for nonprofiteducational purposes;2) the nature of the copyrighted work;3) the amount and substantiality of the portion used inrelation to the copyrighted work as a whole; and4) the effect of the use upon the potential market for or valueof the copyrighted work."218As demonstrated above, these guidelines are not creations of the technologicallyadvanced twentieth century. They have been developing in judicial opinions forwell over two centuries.Leon Seltzer criticizes the Copyright Act of 1976 for not offering a moredefinitive treatment of fair use. He believes a simple list of the guidelines to betoo vague. The statute, he feels, should prioritize the guidelines as to which is themost important factor to be considered in cases of alleged infringement; withoutthis, the Act is open to a wide variation of interpretation. He suggests thefollowing definition of fair use:2I7U.S. Congress, House, General Revision of the Copyright Law, 139.218thid.109"Fair use is use that is necessary for the furtherance ofknowledge, literature, and the arts AND does not deprive thecreator of the work of an appropriately expected economicreward."219This is historically the fundamental rationale behind copyright legislation: theprotection of an author's economic investment in his work through the creation ofa limited monopoly called copyright. The limitations on copyright are imposed bythe need for society through Science and the Arts to progress, develop and grow.These limitations are expressed through a limited term for copyright protection(generally life of the author plus fifty years) and the doctrine of fair use, wherebya work can be copied so long as the use does not infringe upon the author'sexpected economic return (either real or potential).The recent cases on fair use exhibit exactly this line of reasoning. In Sony v.Universal- City, a case involving off-air taping, the United States Supreme Courtprioritized the four elements listed in Section 107, placing the fourth, theeconomic subversion of the original, at the top of the list. The Court stated that "Itis undoubtedly the single most important factor" in the determination of fair use.Because the taping in question was done entirely for non-profit purposes, theCourt found a lack of evidence of damages (either real or potential) incurred bythe plaintiff. The Court stated that "with respect to non-commercial use thecopyright owner must show some meaningful likelihood of future harm to thepotential market for his work from a non- profit defendant's use."220 This placesthe burden of proof of harm to potential markets upon the plaintiff in all cases in219Seltzer, 31.220William Fairy, "Fair Use after Sony and Harper and Row," Current Developments in Copyright Law1986*818.110which the use made by the defendant is non-commercial, although, as we will seein Salinger v. Random House, the plaintiff only has to show the possibility of harm topotential markets.In Sony v. Universal- City, the Court decided in favor of the defendant, finding thathome taping for the purpose of viewing programs at an alternative time served thepublic interest by increasing access to the programs, and was consistent with the"first amendment policy of providing the fullest possible access to informationthrough the public air waves".221However, the Court was very clear in its condemnation of for- profit use ofcopyright works. It stated that "every commercial use of copyrighted material isnot fair use and that every such use presumptively results in harm to the potentialmarket for the original. "222 This creates a clear distinction between for- profituse, which is always an infringement, and non- profit use which is not necessarilyan infringement. Notwithstanding this, in the later case of Harper and Row v. TheNation, the Court stated that "Sony should not be construed to indicate that non-profit uses are presumptively fair. "223 This is particularly relevant for archivists,as a large percentage of archival material is used for non- profit endeavors; studentpapers, scholarly papers, exhibits, display, newsletters, etc.. In cases where theuse is non-commercial, the burden of proof of damage to any potential market forthe work in question lies with the person initiating the action.224bid., 817.222Ibid., 818.223Ibid., 827.111This restrictive interpretation of the fair use exemption for commercial purposeswas applauded by many copyright experts. However, some felt that theinterpretation given by the United States Supreme Court for non- profit uses wasnot strict enough. William Patry stated that "fair use was not intended to provide aback door through which the non-profit privileges formerly enjoyed by usersunder the 1909 Act could be resurrected."224 Patty believes that the argumentthat a use is non-commercial is not, by itself, a sufficient justification for the fairuse exemption to apply.In the 1985 case of Pacific and Southern v. Duncan, the distinction between profitversus non- profit use was reaffirmed. This case involved the taping andsubsequent sale of news broadcasts. The Court put special emphasis on thepurpose of the allegedly infringing use and stated that "the purpose and characterof the [defendant's] use of the [plaintiffs] work heavily influences our decision inthe case. This commercial nature of the use militates quite strongly against afinding of fair use. . . a commercial purpose makes copying. . . presumptivelyunfah-."225The fact that the use involved news reporting did not sway the Court in favor ofthe defendant. "[The defendant] denies that its activities have a commercialpurpose; instead it says its purpose is private news reporting.. . The fact that [thedefendant] focuses on the giving [of the news] rather than the taking [of money]cannot hide the fact that profit is the primary motive for making the224thid.7 819.225Ib1d., 820.112exchange."226 Thus, although one of the purposes of the use was for the greaterdistribution of news reports, the fact that it was done for commercial purposesovershadowed the possible benefit which might accrue to society due to thegreater dissemination of knowledge. This again affirmed the basic tenet ofcopyright: protection for the person who takes the financial risk in bringing thework to the market.The Court also seriously considered the unpublished nature of the work, thusstrengthening the common law tradition of the protection of unpublished worksagainst a claim of fair use, as seen in the earlier case of Macklin v. Richardsondiscussed above. The Court stated that "copyright protects owners whoimmediately market a work no more stringently than owners who delay beforeentering the market."Although Sony expressed the belief that the burden of proof should fall upon theplaintiff in cases of non-profit use, it is interesting to note that "no evidence wasintroduced showing that the plaintiff had lost as much as a single actual orpotential sale; nor did the Court require the plaintiff to demonstrate such losses."The Court stated that "the defendant's commercial purpose, standing alone,creates under Sony, a presumption of harm to potential markets for theoriginal."227 As a result of Pacific and Southern v. Duncan, the burden placed on theplaintiff by the decision in Sony appears to be greatly decreased. The plaintiffneed only show that the use made by the defendant is a commercial use: harm toany potential market for the original work can be assumed.2261bid., 820.227Ibid., 821.113These two cases dramatically shaped the future of copyright infringement cases inwhich fair use was claimed as a defense. "It seemed after Duncan that mereinvocation of the public interest by a commercial user would be insufficient tosupport a claim of fair use. "228 The nature of the use-- particularly whether or notthere was any exchange of money for the work-- became crucial to all fair usearguments.gfarper and- Row v. the Nation reinforced both the prohibition against the commercialuse of copyrighted works and the need to protect an author's right to firstpublication of his unpublished works. Harper and Row were planning to publishexcerpts from President Ford's memoirs. The Nation attempted to preempt theirpublication in book form and released several articles containing the sameexcerpts. As in Pacific and Southern v. Duncan ,the Court "rejected that newsreporting was presumptively fair. The fact that an article is news and therefore aproductive use is simply one factor in a fair use analysis."229 The argument thatthe public would benefit from the increased dissemination of news events did notoverrule the fact that the work was used for profit by the defendant. The Courtstated that: "the crux of the profit/non- profit distinction is not whether the solemotive of use is monetary gain but whether the user stands to profit fromexploitation of the copyright material without paying the customary price."230This is almost an exact duplication of eighteenth century notions regarding228Ib1d., 822.229Ibid., 829.230Ibid., 829.114copyright: primary concern is for the person who invested time, money, and laborin the creation of the work and its subsequent dissemination.The fact that the use in Harper and Row v. The Nation was for profit and that thematerial taken was unpublished weighed heavily in favor of the plaintiff. TheCourt, restating the now two hundred year old notions regarding undisseminatedworks, felt there were dramatic differences between the nature of published andunpublished works and how they should be treated by copyright protection. TheCourt felt that first publication was one of the most important rights a copyrightowner could hold, since it naturally can occur only once, and may severely effectthe economic return due to the author for his labours.231 The Court stated that:"The right to first publication implicates a threshold decisionby the author whether and in what form to release his work.First publication is inherently different from other section 106rights in that only one person can be the first publisher; . . .the commercial value of the right lies primarily in exclusivity.Because the potential damage to the author from judiciallyenforced 'sharing' of the first publication right withunauthorized users of his manuscript is substantial, thebalance of equities in evaluating such a claim of fair useinevitably shifts."232The Court also recognized prepublication rights and the importance attributed themarketing and future sales of a work which is yet to be published. Clearly, theCourt was strongly in favor of restricting the exemption of fair use to publishedmaterial only.2311he tradition of not applying fair use to unpublished works has a lenghtly history. See Parry, Fair UsePrivilege, 436-449.232patry, "Fair Use after Sony and Harper and Row," 830."The author's control of first public distribution implicates notonly his personal interest in creative control but his propertyinterest in exploitation of prepublication rights, which arevaluable in themselves and serve as a valuable adjunct topublicity and marketing. . . Under ordinary circumstances, theauthor's right to control the first public appearance of hisundisseminated expression will outweigh a claim of fairuse."233The Court also emphasized the importance of harm to the market of derivativeworks and the cumulative harm which would result from isolated instances ofminor infringements. From this decision we can see that the common law ismoving away from the situation where harm had to be immediate and provablerather than potential and in the indeterminate future. The common law is movingtowards a much more restrictive interpretation of fair use-- particularly when a useis commercial in nature. This is a result of the increasing reliance of our societyupon intellectual property as a commodity.One of the first modern cases involving unpublished works was British 02Ggen v.Liquid Air in 1925. In this case, the defendant published an excerpt from anunpublished letter written by the plaintiff. The British Court held that, since thecopyright owner of the letter had never intended the work to be published, thedefendant's use of it was clearly an infringement of the author's right to firstpublication and therefore fair use did not apply. Unpublished works wereconsidered by the Court to be fundamentally different from published works inthat, in theory, they were never intended for publication by their author.115233Ib1d., 831.116"It would be manifestly unfair that an unpublished literarywork should, without the consent of the author, be the subjectof public criticism, review or newspaper summary. Any suchdealing with an unpublished literary work would not,therefore, in my opinion, be a 'fair dealing' with thework."234This case brought the old common law tradition of fair use as an unacceptabledefense for the copying of unpublished works into the twentieth century.The special nature of unpublished works was re-affirmed in the 1988 case Saingerv. Random House, in which a biographer paraphrased and directly quoted letterswritten by Salinger which were held by various archives in the United States. TheCourt upheld the earlier decisions regarding the special nature of unpublishedmaterial. "Among the exclusive rights of a copyright owner are the rights toreproduce the work and prepare derivative works."235The Court found that the many closely paraphrased sections contained in the bookwere also infringements of Salinger's letters. In this decision, the Court citedJudge Learned Hand's statement that, "it is of course essential to any protection ofliterary property. . . that the right cannot be limited literally to the text, else aplagiarist would escape by immaterial variations."236 The Court also ruled againstthe use of paraphrasing because of the overall quality of the book and the valueadded to it by the paraphrased letters. "The taking is significant not only from aquantitative but from a qualitative [point of view] as well. The copied passages234In Patry, Fair Use Privilege, 438.235R. Zissu, "Fair Use and the 'Unfair' Reading of Salinger v. Random House-- The Case for JudgeNewman," in Current Developments in Copyright Law 1988, 404.236Thid.are an important ingredient of the book. . to a large extent they make the bookworth reading."237Following the 1976 statutory guidelines, the Court stated that rather thanmeasuring the precise amount of what had been copied it was far more importantto consider "the amount and substantiality of the copyrighted expression that hasbeen used, not the factual content of the material. However, that protectedexpression has been used, whether it has been quoted verbatim or onlyparaphrased."238This was one of first modern cases to specifically address paraphrasing: mostother cases relied on the percentage of exact quotations in determining fair usecases. This has become an extremely important ruling for archives and their users.Safinger v. Random Souse prohibits biographers from paraphrasing too much or tooclosely and from making their works simply a patchwork compilation of theirsubject's letters and ideas.In Safinger v. Random House, we can see the early notions of fair abridgement asdiscussed in the eighteenth century cases cited above, where an abridgement wasconsidered fair provided that it contained enough original thought andarrangement of ideas to be considered a work in its own right. The Supreme Courthas taken this a step further in Safinger v. X2ndom House, and defined the precisesituations in which paraphrasing as well as direct quotation is an infringement.2371. Salinger v. Random House, Inc., 811 F. 2d 90 (2nd Cir. 1987), in Current Developments inCopyright Law 1988,417-18.117238Ibid., 416.118The defense, in this case, argued that biography was a productive use and shouldbe allowed as it increases public awareness and the general knowledge of theworld around us. It was further argued that biographers, in order to retain accurateand vivid descriptions of their subjects should be allowed to copy parts of theirsubject's works. The Court, following Sony, and Harper anti Row, found that:"The biographer had no inherent right to copy the accuracy orvividness of a letter writer's description. Indeed vividness ofdescription is precisely an attribute of the author's expressionthat he is entitled to protect.. . The copier is not at liberty toavoid pedestrian reportage by appropriating his subject'sliterary devices. "2i9The Court took this line of reasoning further and stated that "the purpose of theuse does not entitle him to any special consideration."240 This is clearly amovement away from the earlier cases, such as Sony, wherein the purpose of theuse was considered of prime importance after the lack of economic harm had beendetermined. The Court appeared to be affected by two main considerations: thefact that the letters were unpublished, and the severe harm done to the potentialfuture market of the works:"The effect on the market is not lessened by the fact that theirauthor has disavowed any intention to publish them during hislifetime. . . Salinger has the right to change his mind. He isentitled to protect his opportunity to sell his letters."241The Court asserted that, in prohibiting the use of the unpublished letters it was notthwarting scholarly activity or the dissemination of information. "To deny a239Ibid., 415-16.240Thid.241Ibid., 418.119biographer the opportunity to copy. . . is not. . to interfere in any significant waywith the process of enhancing public knowledge. . . the facts may be reported."242It is the author's unique expression of facts (the 'accuracy and vividness ofdescription') which copyright seeks to protect.243The 1968 case of Hemingway v. Random House is an exception to the injunctionagainst use of unpublished works. In this case, a long time friend ofHemingway's, A. Hotchner, published a book which contained passages ofconversations Hemingway had had with him and others, which Hotchner hadeither taped or taken down in note form. The works or speeches were consideredby the Court to be subject to copyright protection as an unpublished work. "Thepublic delivery of an address or lecture or the performance of a play is not deemeda 'publication' and accordingly does not deprive the author of his common lawcopyright in its contents."244Under ordinary circumstances, this use would probably have been found to be aninfringement. However, the Court did not consider the publication to be aninfringement on the grounds that Hemingway had given implied consent byallowing Hotchner to publish numerous articles during his lifetime whichcontained lengthy passages from Hemingway's taped conversations. The Court242rbid., 419.243This judgement is somewhat contradictory to the resaons for judgement given in the 1966 case,Rosemont Enterprises v. Random House. Random House had published a biography of Howard Hugheswhich, in part, drew upon a series of articles which had been previously published by Rosemont. Thecourt found for the defendant, stating, "This practice is permitted because of the public benefit inencouraging the development of historical and biographical works and their public distribution," A.Blaustein and R. Gorman, Intellectual Property: Cases and Materials 1960-1970, (n.p., 1971), 131.However, it is important to note that the case involved published, not unpublished works, and the courtdid not find any possibility of economic harm to the plaintiff.244Blaustein and Gorman, 52.120stated: "it is enough to observe that Hemingway's words and conduct far frommaking any such reservation left no doubt of his willingness to permit Hotchner todraw freely on their conversation."245Another exception to the use of unpublished works had already been established in'lime Inc. v. Bernard Geis Associates, a case which involved photographs depicting theassassination of President Kennedy in 1963. Abraham Zapruder, a Dallasresident, had fortuitously taken videos of the assassination as it unfolded beforehim. These videos were then bought by Time Life Inc. and were subsequentlypublished in their magazine. After the publication by Time Life, the photos werecopied by hand as sketches and included in a book by the defendant whichoutlined his theory regarding the identity of President Kennedy's assassin.After determining that the photographs were indeed copyrightable, the Courtdecided that given the nature of the subject of the copyrighted works-- theassassination of the President of the United States-- the public good wasoverwhelmingly in favor of the increased dissemination of information regardingthe assassination, and publication was not considered and infringement.The Court wrote that "there is public interest in having the fullest informationavailable on the murder of President Kennedy. [The defendant] did serious workon the subject and has a theory entitled to public consideration. . . The book is notbought because it contained the Zapruder pictures; the book is bought because of245thid., 54.the theory of [the defendant] and its explanation, supported by Zapruderpictures. "246Contrary to what may at first be assumed, these two cases do not establish ageneral precedence of allowing the defense of fair use to be applied to unpublishedworks (Hemingway) or as a defense for the commercial use of published works(Time). Although these cases are exceptions to the established doctrine of fair use,there were extenuating circumstances in each situation: prior implied consent topublish, and the public's overwhelming need for information regarding theassassination of President Kennedy. The established doctrine of fair use was notradically changed by the two unique situations involved in Hemingway v. Random5-louse and Time v. Bernard Geis Associates.As evident from all of the cases cited above, fair use has developed from acommon law, judicial doctrine into a careful and meticulous discussion of the fourstatutory guidelines listed in the 1976 statute, which were themselves taken fromprior judicial opinion. Primary amongst the four guidelines is the injunctionagainst copying which infringes upon the future or potential market of the originalcopyrighted work. The nature or purpose of the use has been consistentlydownplayed in recent years (particularly in Random Souse v. grit Nation andSafinger), and the author's right to first publication of unpublished works has beenre-affirmed as superior to any defense of fair use, thus echoing the early cases ofthe eighteenth century.121246Melville Nimmer, Cases and Materials on Copyright (St. Paul, MN: West Publishing Co., 1979), 431.122In Canada, Keyes and Brunet, following the proposals made by the IsleyCommission of 1956, suggested that "only published works can be so dealt with"under fair dealing.247 The White Paper, which in its recommendations on fairdealing closely parallels the 1976 United States Act reversed the proposal ofKeyes and Brunet and suggested that unpublished works should be included in acompletely new section termed fair use."This new Fair Use doctrine will apply to all copyrightsubject matter that has generally been made available to thepublic, regardless of whether such material has beenpublished in the traditional matter."248However, the most recent report, A Charter of Rights for Creators has returned tothe traditional proposal of excluding unpublished works from fair dealing. 249Given the current situation in the United States and the long standing common lawtradition of the exemption of unpublished works from the defense of fair dealing,this is a wise decision. Including unpublished works under the defense of fairdealing would be a radical change in the legal history of Anglo-Saxon countries.It has long been accepted in England and the United States that an author's right tofirst publication is one of the most important rights protected by copyright. Firstpublication by its very definition can only happen once in the life of a work andmay severely effect any future market for the work or any derivative works.For archivists, one of the most important aspects of the doctrine of fair use has todo with its applicability to unpublished material. As was discussed above, the247Keyes and Brunet, 148.248The White Paper, 40.249A Charter of Rights for Creators, 12.123courts have considered the nature of unpublished material sufficient to warrantspecial protective treatment at common law-- fair use does not apply tounpublished works. Archivists cannot, therefore, allow users to make copies ofany kind or of any length of unpublished works, even though the user may beengaged in private study, research, criticism or review. Fair dealing is simply notan acceptable defense to the use of unpublished works.There has been a great deal of insistence on the part of the library and archivalcommunity to extend fair dealing to unpublished material on the grounds that itsabsence will render the holdings of archives and libraries useless.250 Firstly, thisis somewhat of an exaggeration. Scholars will be able to use unpublished materialand report the facts they find therein. They will simply not be able to copy orclosely paraphrase the works until the term of protection is over. Secondly, theclaim that fair use should be extended to streamline the management of archivesand libraries is not a sufficient reason for such a radical diversion from the law.Copyright does not exist to make the work of archivists any easier just as it doesnot exist to strengthen the bargaining position of any particular section of the laborforce. An author's right to first publication is a strong one and should not bedenied by the gathering of unpublished material under the umbrella of fair dealing.Although archivists are justified in their concern over the inability of fair dealingto be used as a defense for the use of unpublished works given the currentstatutory term of perpetual protection, it is preferable to provide a more reasonableterm of protection for unpublished works (fifty years from the death of the author250See also, Barry Torno, Fair Dealing: The Need for Conceptual Clarity on the Road to CopyrightRevision, (Ottawa: Consumer and Corporate Affairs, 1981), 31-42. Tomo states that some unpublishedworks, primarily those which are performed in public, should be subject to fair dealing.or one hundred from the date of creation if the author is unknown) rather than toextend fair dealing to them and thereby possibly destroy an author's right to firstpublication.124CHAPTER FOURTOWARDS A NEW ACT: SOME CONSIDERATIONSCanadian copyright legislation needs to be revised in light of the special nature ofarchival material which derives from the circumstances of its creation. Archivaldocuments present several problems for copyright legislation due to the fact thatthey are generally unpublished, unique, and have unknown or unlocateablecopyright owners. The current legislation focuses on published material for whichthe author or copyright owner is usually both known and locatable, and for whichmany hundreds if not thousands of copies of the work have been disseminated.The United Kingdom and the United States have both reduced the term ofprotection for unpublished material to a limited amount of time, and includedspecial exemptions for archival material in their recent statutory revisions. Asinformation increasingly becomes a commodity in its own right, the demand forcopyright legislation which is up-to-date, practical, equitable, and technologicallycurrent becomes a matter of increasing importance.In the last Chapter, suggestions were made to revise the present Copyright Act inorder that it might respond to the problems encountered by archivists who, on adaily basis, must attempt to navigate the often stormy sea of competing rights heldby authors and users. While revising the Act is a necessary and worthwhileactivity, another possible solution to the present situation is to simply create a125126separate section that deals specifically with archival material exempting most of itfrom copyright protection.251Archival documents, which are "created or received by a physical or juridicalperson in the course of a practical activity," 252 are inherently different from thoseworks which are traditionally considered to be protected by copyright, such aspaintings, novels, poems, photographs-- those entities that in layman's terms arecalled 'artistic or literary works'. This fundamental difference has been eloquentlydescribed by Hogson in his book on archival administration.'Archives are unselfconscious by-products of human activity,they have the objective formlessness of raw material,compared with the subjective roundness of literary artefactslike books, whether printed or manuscript."253The 'subjective roundness' of artifacts as described by Hogson is a result of theauthor's conscious intent to create a work which is complete and full of meaning inits own right (one can imagine a sculptor smoothing the sides, changing thenatural form of a block of clay into the shape he intends: each movement is madewith the final product in mind). Archives are the direct opposite of this,unconscious, formless by-products of the daily conduct of affairs. The creator ofarchival material does not shape or mold the work to conform to somepreconceived idea. His/her work is simply the residue of an action or transaction--25IAdding a section to the present act is preferable to creating a new act in that the creation of a new actwould obviate the use of all previous case law which has been built up under the present statute.252Duranti, "Diplomatics Part I," 15-16.253J. H. Hogson, The Administration of Archives (Oxford: Pergamon Press, 1972), 4.such as a check which is written to buy something or minutes which provideevidence of a committee meeting.The observer of a painting or sculpture, or the reader of a novel does not need tosee any of the preparatory material behind the work in order to understand it: thepreliminary sketches and drafts, the letters to the patron asking for more money,the letters to the gallery or publisher negotiating the exhibit or publication of thework, the bills for the paper, ribbon, paint or clay. The painting, sculpture, ornovel is, from its inception, intended to be fully meaningful without the presenceof these other documents. In fact, it would be rather absurd to think that the billsfor the paint, or letters to and from the gallery negotiating the lighting or color ofthe background wall would have to accompany the exhibit of any painting in orderfor a gallery patron to understand the meaning of the painting. The artist neverconsiders these documents in the creation of the painting, nor does the user in hisobservance of it. The artist's attention is directed towards the work itself as thefulfillment of his will or desire to express something Anything else produced as aresult of this creative effort is generally considered meaningless clutter. Once thevalue of the bills and letters as evidence of the transactions of buying the suppliesand negotiating with the gallery owner is extinct, the documents have no othercommercial, or legal value. It is exactly these documents-- archival documents--which require special treatment under copyright legislation.254In direct contrast to a painting or novel, archival material (such as the billsand letters described above) is never created as an end product, independent254Marcel Caya made the same suggestion to the House of Commons Subcommittee on the Revision ofCopyright in his 1985 address. See House of Commons, Standing Committee on Communications andCulture, Subcommittee on the Revision of Copyright, Minutes of Proceedings and Evidence, Issue no. 10,1985.127and full of all the elements necessary to render it meaningful to a user.Every item within the fonds255 both lends and gains meaning to and fromeach of the other items.As described over fifty years ago by the Italian archivist Giorgio Cencetti,"archives are something more than and different from the arithmetical sum ofsingle components."256 The single components, when viewed in isolation, arequite meaningless. In fact, "autonomy is a principle alien to archives."257 This isdue to the way in which archives are created. Because archives are the result ofthe actions and transactions of everyday life (paying bills, attending meetingswriting letters) they build up much the same way as sediment deposits itself in ariver bed, each layer related to and dependent upon the next. Only when thelayers are viewed together as a whole and each one is analyzed in context with itsneighbor, does the entire story of the river (or creating body) reveal itself."Archives are not collected. . . They came together, andreached their final arrangement, by a natural process; are agrowth, almost, as you might say an organism as a tree oranimal. They have consequently a structure, an articulation,and a natural relationship between parts."258255A fonds is a group of archival material defmed as, "The whole of the records, regardless of form or medium,automatically and organically created and/or used by a particular individual, family, or corporate body in thecourse of that creator's activities or functions." See Rules for Archival Description, D-3.256Giorgio Cencetti, "Ii fondamento teorico della dottrina archivistica," Archivi, 1(1939): 7-13.Abstract in The American Archivist 3 (July 1940): 279.257Blinkhorn, 22.258Hilary Jenkinson, "The English Archivist: A New Profession," in aglesigdWrihngs_g_f_Siagr 1 aJenkinson, ed. Roger Willis and Peter Walne (Gloucester: Alan Sutton, 1980), 238-239.128Each item in a file is related to all the other items in the file, each file isrelated to every other file in the fonds and only when the files are viewed intheir entirety do they tell the whole story of either a person, a committee orCompany.Thus, archival material such as an inter-office memo or directive has very little incommon with a novel, poem, song or sculpture.259 The memo or directive iscreated in order to carry out a transaction, for example, to set up an appointmentor instate a new staff procedure. The novel or poem is created as a product in itsown right and is subject to a great deal of personal freedom as to its form, lengthand content, whereas a memo or directive is subject to fairly strict regulationsregarding form, length and content. Archival documents are involuntary productsof the actions and transactions which occur as a result of the daily conduct ofbusiness and personal affairs. Creative works are voluntary products and are theresult of an artistic impulse which has as its primary goal the creation of thatspecific object. Archival records, such as checks, committee minutes and budgetsare not the primary goal of the impulse behind their creation. They are simply themeans used towards obtaining some end result.260 The goal of the author is theresult created by the transaction not the tool (i.e. the archival document) used tocarry out the transaction.259This is something which I think we all intuititively understand. The common (not the statutory)definition of 'artistic work' includes all those works which were created as end products, and excludesarchival material, that is material which is the result of transactions. These are two natural groups whichhave been joined together by the statute in a clumsy attempt to extend copyright protection to publishedand unpublished material.260ft is precisely because of this that archival records are valued primarily for their evidential merit.Archival records provide an unbiased account of the transactions that were carried out.129130The courts, in an attempt to distinguish between archival material and endproducts, focused on the unpublished nature of archives rather than on themotivation behind their creation. By relying upon the published/unpublisheddistinction, the courts gave a very broad and, I submit, incorrect definition ofartistic and literary works, a statutory category for which there is no requirementof creative impulse and which encompasses both works which are the result of amotivation to produce an object which has meaning in isolation from the creator'sother works (a final product) and those works which are simply the 'sediment' thataccumulates through the daily actions and transactions of affairs-- works whichhave no meaning in isolation from the rest of the fonds. This broad definition ofliterary and artistic works has resulted in transferring the burden of explanation ofcopyright protection to the somewhat artificial distinction between published andunpublished.261As noted by Hogson, the truly significant difference between published andunpublished works is not the actual state of their publication. The distinction ismore fundamental than that and lies in the reasons behind their publication status.The fact that some works are published while others remain unpublished is not justdue to the whims of fortune. It is usually a direct result of the process andmotivation behind their creation. Archival documents, which are "the result of apractical administrative activity-262 are, in the majority of cases, unpublished,quite simply because they are unpublishable. They were never intended to be endproducts, capable of being understood in isolation from the rest of the fonds.261The common definition of artistic or literary works far better defines this natural category-- thoseworks which were created as products, meaningful in their own right. In extending this term to coverboth archives and works created as end products the statute produced a highly unnatural class with fewcommon characteristics.262Duranti, "Diplomatics Part I," 16.131Due to the circumstances of their creation, archival documents are therefore non-commercial by their very nature. They are "res extra commercium" and were notcreated to be marketed. Hence, there is usually very little to be gained from theirreproduction.263 Protecting archival documents is actually a misapplication of theCopyright Act-- an act which was created to protect those persons who had takenthe greatest risk in bringing a work to market. Therefore, the majority of archivaldocuments should not be protected by copyright. Moreover, while copyrightprotects the unique form of expression of ideas, archival documents are not inthemselves embodiments of ideas and thoughts, but of actions and transactions.They are evidence of the activities, processes and procedures of their creatingbody, and therefore should be exempted from the Copyright Act. Their value asadministrative, legal, financial or historical research tools does not correspondwith any notion of market value. The original British Act of 1709 and thesubsequent acts were not written with the intention of protecting archival material.They were written to protect material created expressly for either moral ormonetary benefit.However, while most archival material does not need to be protected by copyrightlegislation, there are some archival documents which do require protection fromcopying-- those records which express emotions or ideas (personalcorrespondence, diaries, sketches, notes) or are drafts or originals of end products,such as reports, drafts of poems, novels, that is, those records which are not meansfor carrying out transactions.263Cenceui, "Sull'Archivio," 50.132A transaction is defined by diplomatics as "a declaration of will directed towardsobtaining effects recognized and guaranteed by the juridical system," in which "aperson administrates his/her own interests with other persons."264 The effectcaused by the creation of the archival document must therefore be one whichcreates, modifies, maintains, or extinguishes relationships between or amongpersons within the juridical system. It must also be the intent of the author toproduce that effect. While administrative correspondence may be a means used toobtain an effect of a juridical nature, personal correspondence may be simply amethod or form used for expressing ideas and thoughts. Expression of those ideasand thoughts should be protected, the transaction should not be. Similarly, apersonal diary which is used for recording thoughts and feelings does not produceany effect which is intended by the author to be recognized by the juridicalsystem, whereas a ship's log does. The diary is much more similar to a novel andshould be protected from mass reproduction. The author of a diary should havethe first right to publication of his ideas the same as the author of a novel does.However, there is no tangibly creative idea expressed in the ship's log andtherefore it should not be eligible for copyright protection (in fact, there areprohibitions against the creative or imaginative production of most archivaldocuments).Documents within a fonds which either express ideas or emotions or are endproducts (reports, drafts of novels, poems) are very similar to artistic or literaryworks. They are not the automatic, involuntary residue of a transaction, butrequire some kind of creative process on the part of the author. These documents264Duranti, "Diplomatics Part II," 7. In this article a juridical system is defined as a "collectivityorganised on the basis of a system of rules" such as a legal system.133should, therefore, be protected by copyright under the same provisions accorded topublished literary and artistic works.The distinction between those works which are the result of transactions andconsequently do not need to be protected by copyright, and those which are theresult of a creative impulse and do need to be protected by copyright can bedetermined by provenance265 . There are three main categories of provenancewhich are relevant to copyright legislation; the government and Crowncorporations, all other non-government institutions or agencies, and privateindividuals or families.Copyright protection of these three categories should extend from completeprotection (private papers) through partial protection (non government agencies) tocomplete exemption (government records). As discussed in Chapter Three,government records should be entirely exempt from copyright protection. Therecords of non-government agencies and institutions should be protected bycopyright only if they are meant for dissemination and commercial gain, thusexempting all records which are the organic residue of transactions. Individuals'and families' records, the majority of which contain expressions of ideas andemotions, should be covered by copyright protection just as other literary andartistic works are.The records of the Canadian government should be completely free fromcopyright protection.266 These records are the result of actions carried out for the265Provenance refers to the creator of archival material.2661n the United States all records produced by the government are exempt from copyright protection andcan be freely copied by anyone.134citizens of Canada, in their name; they belong to the people and make thegovernment accountable to the people. Their reproduction for the broadestdissemination possible should be permitted, within the necessary restrictions ofother legislation such as the Freedom of Information Act and the Privacy Act andthe Trade Secrets Act.Nor should copyright extend any special protection to documents contained in thefonds of corporations entirely financed with public money. Again, theseinstitutions are funded by the general populace, therefore the documents theycreate should be open to the widest possible dissemination, subject to otherapplicable legislation. While charging a fee for the reproduction of suchdocuments may in some instances help to recoup some of the funds which wereexpended in the creation of the documents, it seems unlikely that a reprographyfee could ever approach the department or committee budgets (usually in thehundreds of thousands if not millions of dollars) required to fund these projects.The current system of providing the Crown and Crown corporations withcopyright protection in order that they may charge a fee for the dissemination ofany work they create is against the spirit of democracy.The records of all other non-government agencies such as voluntary organizations,professional associations, churches and corporations should be given only verylimited protection. The majority of records created by these bodies are the residueof transactions: minutes, ledgers, budgets, directives, reports, registers, contracts,correspondence, etc. The intent behind their creation is clearly administrative.The only works within these fonds which may need to be protected by copyrightare reports or other final products. The Trade Secrets Act, patent law, trademarklaw and privacy legislation would protect those documents which the creatormight not want disseminated.267The records of private individuals and families do require complete copyrightprotection because they very often contain works which can be considered to be ofan artistic or literary character and should be subject to a limited term ofprotection such as that which has been established for published works. Althoughsome personal fonds might contain very few, if any, creative works, the entirecategory of personal fonds would have to be covered by the legislation in order toprevent the time consuming determination of copyright protection on a case bycase basis.It is the responsibility of the professional archivist to determine which provenancecategory a fonds belongs to. 268 This is already a routine decision which must bemade for all fonds or record groups prior to their arrangement and description. Inthe majority of cases it is quite evident which category a fonds belongs to and thedecision is usually made before the records ever arrive at the archives.The current term of perpetual copyright protection for unpublished works mustalso be abolished. A term equal to that for published works, life of the author plusfifty years, is much more reasonable. It would entitle the author and his/her267However, copyright does not grant any right of access to records held by government or privatecorporations, only the right to copy records already available in a public institution.268For an exhaustive discussion on the definition of private versus public records see Trevor Livelton"Public Records" (Master of Archival Studies thesis, University of British Columbia, 1990).135136immediate heirs to any economic benefit which might derive from the work whileallowing the public free use after this period.269In addition to categorizing archival work by provenance the proposed section ofthe statute on archival material should also abandon the strict media divisionsfound in the current act, as discussed in Chapter Three.The term 'author' should be defined for all media (both archival and non-archival)as the person, real or juridical, whose will caused the work to be created.270There are far too many categories and conflicting definitions in the present statute.The most practical definition is one which is broad enough to encompass allworks, yet is simple and straightforward. The legislation cannot be written onlyfor today, it must look to the future and attempt to encompass whatever new worksand means of dissemination may be developed. Revision is a time consuming andexpensive procedure. It is important that the statute should not become outdatedtoo soon. David Magnusson and Victor Nabhan note that legislation which is toodetailed and enumerative usually fails because it does not provide the requireddegree of certainty for the users and is impractical to administer.271 What weneed are broad yet meaningful categories and definitions. Theoretical definitionswill best accomplish this task. The science of diplomatics has been used toanalyze documents for well over two hundred years from quill and parchment to269Marcel Caya , in private conversation, has suggested a term of fifty years from the date of deposit inthe archives as a more natural parallel to the section on published works.270As discussed in Chapter Three this would collapse the categories of work made for hire andcommissioned works into one definition of first owner of rights.271David Magnusson and Victor Nabhan, Exemptions Under the Canadian Copyright Act (Ottawa:Consumer and Corporate Affairs, 1982), 64.137machine readable records. It has proved to be a viable method of investigation forall types of documents. 272There is no conceptual difference, even from the point of view of copyright,between a photograph and a letter: they both convey information, both can beused as evidence of acts that took place. The distinction between categories ofdocuments should not be based on the type of medium-- the only distinctivedifference lies in the circumstances of their creation. A photograph created by agovernment agency to document an oil spill should not be covered by copyrightprotection, while a photograph created by a portrait artist or commercialphotographer should be. The government photograph is archival, and as such is anintegral part of a transaction. It was created as part of a file generated by aspecific government activity, the investigation of an oil spill. The secondphotograph was created specifically in order to produce an economic return to itsauthor. Therefore, copyright legislation should reflect the intentional differencesin the creation of these two photographs rather than simply accord them blankettreatment as photographs. 273The same is true for textual works. The intent behind a letter to the editor of anewspaper, with respect to duplication and dissemination, is very different fromthe intent evidenced in the creation of a letter of application for citizenship whichis directed to Internal Affairs. The letter to the editor, which was created by the272Janet Turner, "Experimenting with New Tools: Special Diplomatics and the Study of Authority in theUnited Church of Canada," Archivaria 30 (Summer 1990).273 While the definition of author as first owner of copyright should be uniform for all types of media theterm of protection may need to be different for photographs (eg. creation plus fifty) due to the fact thatthe author is usually unknown when they are donated to the archives. It is preferable to sacrifice someuniformity for the sake of practical administration of the legislation. A perfectly uniform statute is notvery worthwhile if it is cumbersome and impractical to administrate.138author with the express intent of distribution and dissemination should be coveredby copyright protection. The letter to Internal Affairs should not be (access,however, would be protected by the Privacy Act). The government photograph ofthe oil spill and the letter to Internal Affairs have much more in common withrespect to their creation and subsequent nature than either the two photographs orthe two letters.The distinctions between archival and non-archival material and the intent behindcreation are the entities on which legislators must focus; not media or state ofpublication. A researcher who uses thoughts and ideas expressed in publishedcorrespondence may derive only moral benefit from the use, and one who makesuse of thoughts and ideas expressed in unpublished, government correspondencemay indeed derive economic benefit, but the fact remains that the first case shouldbe considered infringement, the second should not. Archival material, whichaccumulates naturally as the result of the regular transaction of affairs carried outby a physical or juridical person does not need to be protected by copyrightlegislation, because it was not created for the economic or moral gain which mayderive from the unique form of expression of its contents.The modern term intellectual property is in fact a much better description of whatcopyright legislation should protect. Rather than a simple 'right to copy,' thestatute should protect only those works which are truly intellectual creations.Material which is the residue of transactions, and hence, not really intellectualproperty, should not be subject to copyright legislation.APPENDIX ONEARCHIVISTS: WHAT DO WE DO NOW?While waiting for either a new section of the Copyright Act to be written orrevisions to the old Act to be passed, archivists must nevertheless operate theirinstitutions based on the present outdated legislation. This appendix discussesthose areas of most concern to archival institutions: reference and acquisition,users, donors, oral histories, computer programs, and photographs.Reference and AcquisitionAll of the archival or library staff who deal with donors and users should be wellinformed about the statute and should be aware of the potential problemssurrounding copyright. Not only will this help to make transactions with thepublic smoother and better coordinated; it will help protect the archival institutionagainst any potential lawsuits. There should be a section in the staff policymanual which outlines how staff members are to deal with user requests regardingcopying, publishing, displaying, etc., of copyrighted material. This will aid aninstitution if the unfortunate situation occurs where a copyright owner sues forinfringement, because aiding someone to use or make copies of a copyrightedwork is considered an infringement of the law. It is possible for an archivist to beheld personally liable in an infringement suit simply by helping or aiding a user inany way to copy a work. Recent copyright suits have tended to name as many co-defendants as possible-- including the archivist responsible for the use.274Donors139274In Salinger v. Random House all three archives which provided material to the defendant were namedin the suit.It is the prerogative of each individual institution to decide whether or not toobtain copyright for the material donated to them. Some repositories whichacquire primarily literary works may not wish to become involved in thevoluminous legal paper work required to administer the copyright and thereforemay not wish to obtain it upon physical transfer of the material.Other repositories may wish to obtain copyright in works which have littleapparent commercial value (the majority of archival holdings) in order to simplifythe use of the records by researchers who wish to publish archival material.Permission to publish can then be granted by the archives.If the repository wishes to obtain the rights, transferal of copyright should be astandard clause on every donor form. The archivist must explain the nature ofcopyright to donors (what the rights entail, who the owner is, the term of the rightsand the nature of moral rights, which cannot be transferred but only extinguished).The donor must then sign a copyright transferal form as copyright can betransferred or extinguished only by means of a written instrument. It is imperativethat the archivist is satisfied that the donor understands what he or she is signing.A contract which has been signed under duress or false pretenses can be easilyfound invalid.Upon obtaining written transferal of the copyright, the archives will then have theauthority to grant a user the right to publish, copy or use the material, subject toany access restrictions.It would also be appropriate to prepare a brochure outlining the nature ofcopyright, what the rights entail, who the owner is, the term of protection etc., sothat it can be given to donors and users alike who have questions regarding140141copyright issues. This may also be of some benefit if the institution is involved inany kind of litigation wherein the accusation might be made that the archives wasnegligent in properly informing both the donors and the users of their rights andthe limitations on those rights. Oral conversations are all too easily forgotten ormis-remembered.Suggested Clauses For Release Forms: These forms are typically called 'gifts of deed' or 'instruments of donation' andshould contain clauses which clearly state the transferal of the copyright. Forexample:"I assign and convey legal title and all literary property rights which I may have tothe above described material to the Archives of^-275"I hereby make a gift of and assign to the ^ for the use of^ this collection.I relinquish any literary rights which I possess to the contents as well as to thecontents of any of my letters or writings in other collections at the^."276"Any copyrights such as the donor may possess in this property or in any otherproperty in the custody of the^Archives are hereby dedicated to the public."277Users275The Church of Jesus Christ of Latter-Day Saints, as printed in Society of American Archivists Manualof Forms (Chicago: Society of American Archivists, 1982), 42.276University of Michigan Historical Collections, as printed in Society of American Archivists Manual ofForms, 43.2770hio Historical Society Deed of Gift, as printed in Society of American Archivists Manual of Forms,44.142If there are any self-serve copy machines on the premises, there should be a noticewarning the user of copyright infringement. Institutions are not generallyconsidered liable for copying that is done on self serve machines, provided thatthere is a well located, easily readable notice of what constitutes copyrightinfringement placed on every machine in the building.Users should be required to sign a form which indemnifies the institution againstany litigation should the patron use the material in an unscrupulous manner. Thisform should be signed every time material is copied for or by the user-- thisincludes copying passages by hand.The archives cannot grant or imply permission to copy any work in its custody forwhich it does not own the rights. This restriction includes photographs, films,videos, computer programs, and any incoming correspondence within a fonds.Proper acknowledgement of the copyright owner in the user's publication is not asufficient defense for the use of copyrighted material, nor is the fact that the usemay be for non-profit purposes.It may also be appropriate to warn researchers, before they begin a lengthyresearch project, that the archives does not own copyright in the material they arerequesting and that, in order to publish, perform, display, broadcast, or copy thematerial or any significant portion thereof, they will have to seek permission of thecopyright holder. This can help to prevent a situation from developing whereusers learn only after starting a project that they cannot publish the material theyhave been using.It is also extremely important to keep accurate donor files-- including full nameand address. The user will have the responsibility of contacting the owner of thecopyright (often the donor or author) in order to seek permission to use thematerial. It can be very frustrating for a user to be told that not only can thearchives not grant permission to use the material, but also the archivist doesn'tknow who can or where this person might be located.Again a brochure explaining the nature of copyright can be helpful in providingthe user with information. The brochure should carefully explain fair dealing,since many scholars may assume that their use automatically falls under thisdefense.Suggested Clauses For Release Forms: "Permission to examine materials is not an authorization topublish. Separate written application to permission to publishmust be made to the^Archives. Researchers who planeventual publication of their work should make inquiryconcerning overall restrictions on publication beforebeginning their research. . . . However, in granting permissionto publish^does not surrender its own right thereafter topublish any of the materials from its collection or grantpermission to others to publish them.. .^does not assumeany responsibility for infringement of copyright in thematerial held by others."276"Permission to publish from unpublished manuscripts orpublished works under copyright must first be obtained fromthe holder of the copyright. It is the researcher'sresponsibility to secure that permission. For originalmanuscript materials, the permission of^as owner of theoriginals should also be obtained. In most instances, theDepartment does not hold this copyright."279278Massachusetts Institute of Technology Institute Archives, "Application for Use of ManuscriptMaterial," as printed in Society of American Archivists Manual of Forms, 71.279Emory University, Special Collections Department, as printed in Society of American ArchivistsManual of Forms, 74.143144"I have read and agree to abide by the^Reading RoomRules as printed on the reverse side of this form. I realizethat I am responsible for conforming to copyright, right-to-privacy, libel, slander, and any other applicable statutes. Iagree to indemnify and hold harmless the University, itsofficers, employees, and agents from any and all claimsresulting from the use of materials in the University archives.• . I understand that failure to comply with these rules mayresult in the denial of access to the collections."280Oral HistoriesOral histories are not immune to copyright problems. In Canada, the person whoowns the original tape is the owner of the copyright in that recording."The term for which copyright shall subsist in records,perforated rolls and other contrivances by means of whichsounds may be mechanically reproduced shall be fifty yearsfrom the making of the original plate. . . and the person whowas the owner of the original plate at the time when the platewas made shall be deemed to be the author of thecontrivance."281However, in the United States, the interviewer and the interviewee each holdrights in their own unique expression. The fact that the situation is quite differentdepending on where the tape is made can lead to confusion as to the ownership ofcopyright in oral histories. The best solution is to systematically provide a releaseform for each interviewee to sign, transferring all rights to the interviewer or theinstitution which will receive the tapes as a permanent deposit.282280Michigan State University Archives and Historical Collections, "Reseacher Application," as printed inSociety of American Archivists Manual of Forms, 75.281Copyright Act 1921, s.10.282For a very thorough discussion of the methodology used in conducting oral histories see Voices: AGuide to Oral History, Derek Reimer, ed. (Victoria: Ministry of Provincial Secretary and GovernmentServices, Provincial Archives of British Columbia, Sound and Moving Image Division, 1984).Computer ProgramsComputer programs cannot be copied under the current act for preservationpurposes. The transfer of material from one medium to another is also prohibited(scanning textual material for input into a computer database is an infringement)as is the transfer of a program from one language into another.PhotographsUnder the current statute the person who paid for the photograph to be created isthe person who owns the copyright. It is extremely unlikely that any revisionwould be retroactive. It is difficult for parliament to take away rights which havepreviously been granted. Therefore, most of the photographic material currentlyheld in archival institutions will fall under this section. In the case of studiophotographers, the individual clients who paid for the photographic portraits arethe copyright owners.In the case of commissioned works, the majority of photographs in a commercialphotographer's fonds, the copyright is owned by the person, either physical orjuridical, who paid for the creation of the photograph. The photographer may notnecessarily be aware of this. Quite often physical ownership of the negative isconfused with copyright ownership.The current term of protection for photographs is fifty years from the making ofthe original negative.283 While the creation of the negative might be somewhatdifficult to determine, this should not create too many problems for the archivist.It is much easier to determine the approximate date of creation of the photograph,283Copyright Act 1921 s. 10145146the negative necessarily being created prior to the print, than it is to determine whotook the photograph and what their date of death is (this has been one of thesuggestions for copyright revision.)In order for a photograph which is less than fifty years old to be copied,permission must be received from the copyright owner. This puts added emphasison the archivist to acquire the entire fonds of the photographer-- not just theimages themselves. Without textual information which describes whocommissioned the works it will be extremely difficult, if not impossible, for thearchivist to obtain permission to reproduce the images until they are older thanfifty years.Fair DealingThis section has been widely misunderstood by most archivists and users. It doesnot mean that if the user acts with good intentions or in some 'fair' way thecopying will be allowed. A major emphasis of the common law tradition incopyright has been to consider whether or not the user obtains any economicreturn from the use of the copyrighted work. It is extremely unlikely that any usewhich results in an economic return-- either direct or indirect (e.g., the hanging ofhistoric photographs in restaurants and pubs)-- would be considered fair dealing.The exemption which pertains to education has been interpreted as applying toprimary and secondary education only-- not college or university level. There is afurther restriction contained in the American legislation that the use must bespontaneous, such that the user cannot reasonably obtain permission from thecopyright owner before the work is to be used. However, this is a one- timeexemption. If a teacher plans to use a work a second time, permission must beobtained prior to that use. While this is not part of the Canadian legislation, it islikely that Canadian courts would take these findings into consideration whendeciding Fair Dealing cases in Canada.In conclusion, the best procedure to follow is for all of the staff members who dealwith donors and users to be well versed in copyright legislation. The staff manualshould also contain an explanation of copyright and a description of theprocedures a staff member is to use when explaining copyright, and the variousrelease forms for donors and researchers. This will help to assure that all donorsand users receive the same thorough and systematic explanation as a routinefunction of the institution. Ignorance is never an acceptable defense to anallegation of infringement.147148APPENDIX TWOCURRENT DEVELOPMENTSIn the summer of 1991 the ACA Public Awareness and Advocacy Committee wasformed. Because of its wide variety of roles, it was recommended that thecommittee be divided into two standing committees, one on public awareness andthe other on advocacy. The subcommittee on Copyright was placed under theStanding Committee on Advocacy. The mandate of the committee is twofold, torepresent the interests of archivists to the government and to educate and updatethe profession about copyright.In an attempt to further strengthen its voice in negotiations with the governmentregarding copyright revision, the ACA joined the Canadian Society of CopyrightUsers late in 1990. The society was formed to lobby the government on behalf ofthose who use copyright works. The membership is largely music oriented, manyradio stations are members, as well as the Canadian Library Association, and otherprovincial library associations. 284 The creators of copyright works have a varietyof long-standing and very vocal lobby groups as can be seen in the Proceedings ofthe 1986 Committee on the Revision of Copyright, whereas archivists and theirvarious patrons have in the past tended to be somewhat subdued and unobtrusivewhen it comes to representing their needs to the government. Hopefully, theactions taken by the Canadian Society of Copyright Users will result in a betterbalance between users and creators of copyright works.284Conversation with Greg Brown, Dec. 9, 1991.149In the fall of 1991 the ACA subcommittee on Copyright drafted a response to theMinister of Communications concerning the proposed exceptions for archivalmaterial included in the 1986 Government Response to the Report of the Sub-Committee on the Revision of Copyright. In order to present a more coordinated,forceful and hopefully more effective representation, the Canadian Council ofArchives (which has only institutional members as opposed to the ACA which hasindividual members) was asked to support the ACA response.285The ACA position paper provides a detailed analysis of the concerns of thearchival community and outlines the archival exemptions requested by the ACA.It includes many of the revisions contained in earlier proposals, most importantlythe restriction of protection of unpublished works to either fifty years from thedate of death of the author, if known, or seventy-five years from the date offixation for unidentifiable authors. While providing many detailed exemptions forthe many different types of archival material, its basic point is that archivalmaterial is different from other copyrighted works and deserves to be treateddifferently by copyright legislation-- making it exempt from many of theprotective clauses of the legislation.286In July 1991, Corrado Santoro, chair of the ACA Advocacy Committee, met withofficials from the Department of Communications in order to answer anyquestions they might have concerning the ACA paper. The government is said tobe in the process of drafting new legislation, although, given the current problemsin the economy, the state of national unity, and the impending national election, it285Conversation with Shirley Spragge, Dec. 4, 1991.286mais, to.is uncertain whether copyright will be given priority by the government at thistime.Another archives association which is very active in the area of copyright issues isthe Group des Archivistes de la Region du Montreal (GARM). In the fall of 1990as a result of an outcry on the part of the members at the close of a two dayseminar on copyright, GARM wrote a letter to the Minister of Culture outliningthe concerns archivists had regarding copyright revision and the urgently neededexceptions for archival material.Nancy Marrelli, president of GARM, has recommended that a special section onliability should be added to the legislation restricting damages which may berecovered from the user or agent of the user to not exceed the standard fee chargedfor the commercial use of a photograph-- usually fifty or seventy-five dollars.287She also stressed the need for archivists to educate themselves about copyright andto lobby the government by preparing papers and letters which represent thespecial needs of archives in copyright revision.The Association des Archivistes du Quebec has also been active in the process ofcopyright revision. In 1986, Marcel Caya presented a brief to the Sub-Committeeon the Revision of Copyright outlining the special nature of archives andsuggesting that, because the majority of archival material was never created for acommercial purpose, it should be exempt from copyright protection. Due to timerestraints and some difficulty in communication between the two associations, theACA and the AAQ generally present separate briefs.287Conversation with Nancy Marrelli, Dec. 4, 1991.150151The briefs, papers, and letters have been sent, the question sessions are over. Allof the associations and societies have presented their requests to the governmentand are now awaiting new legislation. However, rather than assumingcomplacency, archivists must continue to monitor the copyright situation andstress the special needs of archives in any revision process. 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