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An Agenda for Posterity: Copyright and the Collective Canadian Past
I would like to thank the Ministers and the facilitator of this consultation for thisopportunity to participate in this consultation process.I come to the copyright debate as someone with a keen interest in using the culturalmaterials of our collective past. Unfortunately, there are several key areas in whichthe existing provisions of the
Copyright Act
either do not allow for the legitimateinterests of posterity, and in some cases actively work against those interests.In my submission I will first make several general observations which guide myapproach to the copyright debate. I will then make some more detailed analyses andrecommendations for legislative changes.
General Observations1. The
Copyright Act
overall is not archaic.
Contrary to popular myth, or, more to the point, the myth promulgated byproponents of ever-stronger copyright, the Canadian copyright regime is notarchaic, antiquated, or out of date. It is true that the current
Copyright Act
tracesits origin to 1921
1
(not, as is sometimes claimed, the 19
th
century.) However, the
Copyright Act
is also one of the most frequently amended pieces of federallegislation. The ink was barely dry on the 1921 act before it was amended
2
, andthere have been forty other amendments to Canadian copyright laws in the decadessince
—
one amendment approximately every two years.By far the majority of these amendments have been in recent decades (seven in the1980s, eleven in the 1990s, seven in the 2000s). In fact, between 1981 and 2005inclusive, Canadian copyright laws were amended on an average once every elevenmonths. And not only has the pace of amendments steadily increased in recentdecades, the scope of the amendments (as measured by the number of provisionsamended, added, or repealed) has increased even more dramatically, as thefollowing figures show.
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1
An Act to Amend and consolidate the Law relating to Copyright
, S.C. 11-12 Geo. V., c.24
2
An Act to Amend the Copyright Act
, S.C. 13-14 Geo. V., c.10
3
Figures derived from the annual and revised Statues of Canada. This analysis is current toJanuary 2008.
2
The net effect of this near-constant revision to the
Copyright Act
is that less than6% of the original 1921 Act survives, unaltered, to the present day. Expressed a
051015202530354045
1 9 2 1 1 9 2 4 1 9 2 7 1 9 3 0 1 9 3 3 1 9 3 6 1 9 3 9 1 9 4 2 1 9 4 5 1 9 4 8 1 9 5 1 1 9 5 4 1 9 5 7 1 9 6 0 1 9 6 3 1 9 6 6 1 9 6 9 1 9 7 2 1 9 7 5 1 9 7 8 1 9 8 1 1 9 8 4 1 9 8 7 1 9 9 0 1 9 9 3 1 9 9 6 1 9 9 9 2 0 0 2 2 0 0 5
Cumulative number of copyright-related Acts
050100150200250300350400450
1 9 2 1 1 9 2 4 1 9 2 7 1 9 3 0 1 9 3 3 1 9 3 6 1 9 3 9 1 9 4 2 1 9 4 5 1 9 4 8 1 9 5 1 1 9 5 4 1 9 5 7 1 9 6 0 1 9 6 3 1 9 6 6 1 9 6 9 1 9 7 2 1 9 7 5 1 9 7 8 1 9 8 1 1 9 8 4 1 9 8 7 1 9 9 0 1 9 9 3 1 9 9 6 1 9 9 9 2 0 0 2 2 0 0 5
Cumulative number of
Copyright Act
sectionsamended, added, or repealed
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different way, less than 2% of the current
Copyright Act
derives, unaltered, from theact of 1921. There are some good reasons for amending the Act, yet again
–
but
being ―old‖ or ―out of date‖ are
not among those reasons.
2. Limitations to copyright have cultural and economic value.
There is no doubt that the existence of copyright is economically important,allowing copyright owners (who so desire) to monetize the works which they created(or o
therwise own). It also allows them, in a general sense, to ―control‖ their cultural
products, though only to the extent that this is possible in the real world, to theextent that they desire to do so, and within the metes and bounds of copyright andother laws.This last point is especially important. Copyright, other intellectual property rights,and other laws which govern the use of cultural material, for economic purposes orotherwise, are not unlimited. Copyright in particular is limited in scope (onlycertain cultural products are protected by copyright, and not others), breadth
(copyright consists of a specific ‗bundle‘ of rights, but not others, and there are
limitations on those rights), and extent (copyright is limited in time.)Limitations on copyright include the finite term of copyright protection; the lack of copyright protection in mere ideas, unoriginal works, or insubstantial portions of otherwise copyrighted works; and the statutory exemptions to what mightotherwise be construed as infringing acts. Copyright policy and its attendant lawsmust recognize that these limitations themselves have important cultural andeconomic value. To offer just a few examples:
A search of over 22-million listings for resale books on ABE-Advanced BookExchange, a British Columbia-based intermediary re-selling website, showsthat 3% of the listings are recent print-on-demand copies of sometimesclassic, but often obscure, public-domain works.
4
Digitization efforts such as canadiana.org and ourroots.ca rely on their
public-domain status to make thousands of historical sources available toCanadian researchers and students.
The Copyright Board has declined to issue licenses to users of works withunlocatable copyright owners, where no license is needed because the amountof copying is not substantial
5
, or because copyright no longer subsists in thework.
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This has allowed published, museums, and other institutions topursue their own cultural activities which build on the cultural past.
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Based on returns of searches made on abebooks.com the week of August 1-7, 2009.
5
See decisions of the Copyright Board in Files 2007-UO/TI-22 and 2003-UO/TI-21.
6
See decisions of the Copyright Board in Files 2005-UO/TI-36 and 2004-UO/TI-20.
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My submission to the 2009 federal government consultation on copyright law reform.
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