These somehow didn't get posted to the blog. Sorry it took so long, but I hope you still find them interesting and informative.
November 12, 2009
Copyright protects creations, although we often think of it as being limited to paper-based works. It includes patents on inventions, trademark (word or symbol used as a marketing tool that differentiates products from eachother), and industrial design (commercially manufactured designs). It is automatic upon creation of the work, so everything archival has been or is being protected. It gives the creator or copyright holder control over who, what, when, where, why, and how the work is used, and also protects the user’s rights.
In the case of a manuscript, it is protected as a literary work. The creator has the right of publication, making a movie, serializing, translating into other languages or sharing the work in other countries. Copyright provides the creator with commercial tools to get money or royalties and live by their work. For musical compositions, the composer has the right to make sheet music, perform in public, make sound recordings, and synchronize with audio-visual works. They can sell or license the rights to the composition to generate money or royalties.
When obtaining copyright-affected materials, you can negotiate uses through a permit that will allow you to use the works without asking permission or paying a fee. For museums, such uses include archival research study and private study. If you ever decided to publish the information, you would have to obtain permission from the copyright holder.
Distribution of the work (or where the activity takes place) must follow that country’s laws, so in
, Canadian copyright law applies. This includes posting information online. It doesn’t matter where the host site is located, wherever you posted from, you have to follow that country’s laws. For example, a Us-created news reel about a Canadian event has been posted online. It must adhere to the Canada rules, but if it was found in a Canadian institution, Canadian rules apply. US
Rules can vary between countries, and there are many international treaties on the subject. These provide protection to works if the country is part of a certain treaty, such as NAFTA, the Burns Convention, or WIPO. These dictate that national laws must meet certain standards, and provide rules for treatment of works, including a minimum standard of protection. There are some ‘maverick’ countries without copyright laws, so citizens can’t actually protect their creations. The copyright symbol means that a work meets international requirements of registration. This serves as a warning to the general public and potential users.
What’s Protected and for how long
Whenever dealing with anything that would fall under copyright law, ask yourself the following: is it protected? If so, what is the term of protection? Who holds copyright? Finally, what do you want to do with the work, and is it allowed?
Cinematographic works (audio-visual or moving images) that were created after 1994 fall under the category of dramatic works. Those created before 1994 can be photographic works. Photos taken after 1948 fall under the “life + 50” rule, meaning they fall under public domain once the creator has been deceased for 50 years.
Short word combinations, slogans, ideas, facts, titles, and names aren’t protected by copyright.
User’s rights are sometimes referred to as “fair dealing”. The supreme court is currently making changes to these rules, but there are some generalizations that can be made and that likely won’t change. In the past, for fair dealing to apply, one of the following conditions had to have been met: research, private study, news reporting, criticism, or review. In 2004, two statements were made:
- exceptions are user’s rights and must not be interpreted restrictively.
- purposes in fair dealing must be given a large and liberal understanding.
There are six factors used to assess fairness, although these can be difficult to apply as they are all very subjective:
- Purpose of dealing.
- Character of dealing – how works were dealt with, whether they were widely distributed or used for a single purpose, and whether or not copies were destroyed.
- Amount of dealing – trivial amounts are ok, but it also may be possible to reproduce a whole work such as a photo, map or letter.
- Alternatives to dealing – non-copyright equivalents should be considered if available.
- Nature of work – if unpublished, distribution or inclusion can lead to wider dissemination.
- Effect of dealing – was it a commercial success?
The archival community has requested that one more exception be added to the current rules – for research and private study conducted online. They are also pushing for legislation to be introduced to deal with orphan works, cases where you will never be able to track down the creator to get permission to use the work.
Always include copyright information in gift and other agreements.
In conducting a risk assessment, it should weigh serving the public’s needs against protecting the objects.
Keep a paper trail of all decisions, and why they were made.
Check the Copyright Committee briefs online. Google Copyright Consultation
Council of Archives. Canada