1. McCarthy Tétrault Advance™
Building Capabilities for Growth
Law Society:Commemoration of
Holocaust Remembrance Day 2012:
Working Through Copyright Issues
Barry B. Sookman
bsookman@mccarthy.ca
416-601-7949 April 17, 2012
McCarthy Tétrault LLP / mccarthy.ca / 11350376

2. A few basics
¬ Copyright protects original literary, dramatic, musical and artistic
works and sound recordings e.g. books, photos, films, recorded radio
and TV programs, newspaper articles, manuscripts, sketches,
paintings, musical works, databases.
¬ A work must be “original” (requires skill and judgement) and must not
be copied from someone else.
¬ Copyright - registration is optional; registration provides certain
presumptions, but copyright subsists in a work without registration.
¬ Under international conventions (Berne, TRIPs, WIPO Treaties)
items are likely protected regardless of where they were created.
¬ Copyright - in general life of author plus 50 years.
¬ Determining ownership and authorship
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3. A few basics
¬ Copyright - confers a series of exclusive rights such as the right to do the
following with works:
¬ reproduce e.g. copy, scan, digitize
¬ publish an unpublished work
¬ translate and publish a translation
¬ perform in public e.g. in a public place like exhibition, museum, library
¬ communicate to the public e.g. transmitting and making available over the
Internet
¬ Engaging in any exclusive right without consent is infringement, unless the
activity falls within an exception to infringement.
¬ Transnational application of rights
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4. Type of archival materials protected by
copyright
¬ Historical documents
¬ photographs, film footage, sound recordings
¬ propaganda materials such as school text books, small publications and
rare serials
¬ newspaper clippings
¬ drawings, sketches
¬ diaries, manuscripts and memoirs
¬ Eyewitness accounts, narratives, testimonials, video testimonies of Holocaust
survivors and other witnesses
¬ Annotated bibliographies
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5. Copyright compliance challenges
¬ Clearing rights to reproduce and disseminate historical documents
¬ Obtaining permissions
¬ Identifying term of copyright esp. for orphan works
¬ who is author e.g. of photos
¬ when author died
¬ Identifying who owns the copyright
¬ Determining if the item can be scanned, digitized, made publically available
including over networks
¬ Creating a fully accessible digital library
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6. Is copyright reform needed
¬ Ms. Nancy Marrelli (Special Advisor, Copyright, Canadian Council of
Archives) to Legislative Committee on Bill C-11 March 1, 2012
¬ Archives expend scarce resources to acquire, preserve, and make our
holdings accessible, but we often cannot use modern electronic
communications means, such as web sites and the Internet, to make
them available to the Canadian public because the copyright owners are
unknown or cannot be located. They are orphan works. These orphan
works fall by the wayside on the information highway of the 21st century.
Important chunks of the Canadian experience fall into a black hole where
access is severely limited. Researchers have to travel to an archival
institution, often far way in another city or province, to use the material on
site. Furthermore, without information about who the creator is and his or
her date of death, the term of copyright protection is unknown, and the
black hole extends into the future with no definite expiry date. (emphasis
added)
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7. Is copyright reform needed
¬ Council of Canadian Archives Submission To Industry
Canada and the Department of Canadian Heritage on the
2009 Copyright Consultation (27 August 2009).
¬ Recommendation 1
¬ The Copyright Act should be amended to include a
technologically neutral access right to archival holdings
permitting archives to make their holdings accessible to
the public using digital technology, including the
Internet.
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8. Dealing with orphan works
¬ Copyright Act gives Copyright Board the power to grant non-exclusive
licenses for any right of copyright owner in any published works.(s.77)
¬ applicant must have made reasonable efforts to locate the owner of the
copyright
¬ the owner cannot be located
¬ license is based on terms and conditions set by Board
¬ license can include fees that the owner can collect within 5 years after
the license expires
¬ Board has power to make regulations governing the issuance of
licenses
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9. Dealing with orphan works
¬ Licenses granted by the Copyright Board in 2011 pursuant to section 77(1):
¬ the reproduction and the communication to the public by the telecommunication of three
images published in The Canadian Home Journal in a article entitled "The Media,
Gendered, Fat and Other Problematic Bodies“
¬ the mechanical reproduction and the communication to the public by telecommunication
of a musical work entitled "Men are Like Street Cars" by Louis Jordan or Charley Jordan
¬ the synchronization, reproduction and communication to the public by telecommunication
of an excerpt of a musical work entitled "Le temps est bon" written by Stéphane Venne
and published by JFM Investments Inc.
¬ for the reproduction, synchronization and public performance of an excerpt of a musical
recording entitled "Seeburg Background Music Record BA-109A" in a short film
¬ for the reproduction of a poster created by the artists group Kukryniksy
¬ the reproduction, synchronization and public performance of an extract of a television
series entitled "Maria del Barrio“
¬ the reproduction of "Chaudières marine, questions et réponses" as translated by W.D.
Ewart from "Marine Boilers Questions and Answers" by G.T.H. Flanagan and published in
1984 by Stanford Maritime, London UK
¬ See, http://www.cb-cda.gc.ca/unlocatable-introuvalbes/licences-e.html
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10. Generally applicable copyright exceptions*
¬ Fair dealing for an allowable purpose e.g., research, private study or education.
¬ The dealing must be fair. The following factors help determine whether a
dealing is fair:
¬ the purpose of the dealing,
¬ the character of the dealing,
¬ the amount of the dealing,
¬ the nature of the work,
¬ available alternatives to the dealing, and
¬ the effect of the dealing on the work.
¬ Exception broadly construed in the CCH v Law Society case.
¬ *Presentation assumes Bill C-11 will be enacted.
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11. Generally applicable copyright exceptions
¬ Could the creation and dissemination of a digital archive of the holocaust be
permitted under fair dealing?
¬ Two cases currently before the Supreme Court will clarify scope of fair
dealing defense including:
¬ what is research and private study
¬ whose purpose should be considered in determining the allowable
purpose and what is fair
¬ how should the fair dealing factors be applied
¬ See, SOCAN v Bell Canada, Province of Alberta v Access Copyright
¬ Other potentially useful exceptions:
¬ New exceptions for ISPs e.g., hosting exception (s31.1(4)).
¬ Non-commercial user-generated content (s29.21)
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12. Specific copyright exceptions
¬ Educational institutions e.g. Includes elementary, secondary and post-secondary
education.
¬ Libraries, archives and museums e.g., a non-profit institution “in which is held and
maintained a collection of documents and other materials that is open to the public
or to researchers”.
¬ University or other educational institution e.g. McMaster, Concordia, University of
Western Ontario
¬ Museums e.g. Montreal Holocaust Memorial Centre, Canadian War Museums
¬ Archives e.g., Canadian Jewish Congress Charities Committee National Archives
(CJCCCNA), Jewish Public Library Archives (JPL-A), and Congregation Shaar
Hashomavim Museum and Archives (made available through links The Canadian
Jewish Heritage Network)
¬ National Archives of Canada
¬ Institutes e.g. Montreal Institute for Genocide and Human Rights Studies,
Holocaust Literature Research Institute
¬ Foundations e.g., Freeman Family Foundation Holocaust Education Centre (HEC)
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13. Specific copyright exceptions
¬ Educational institutions:
¬ On its premises, to reproduce a work, or do any other necessary
act, to display a work for educational or training purposes. (S29.4)
¬ Copy most works publically available through the Internet for
educational or training purposes; also communicate to its students
(s30.04)
¬ Libraries, archives, museums
¬ Make available copies of works to facilitate fair dealings of others.
(S30.2)
¬ Transmit digital copies to patrons of other libraries (inter-library
loans) (s30.2(5.02))
¬ Make copies where needed to manage and maintain collections.
(s.30.1)
¬ These apply to libraries, archives and museums that are part of
educational institutions. (s.30.4)
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14. Concluding remarks
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15. Slides available @
barrysookman.com and
mccarthy.ca
* Translations of French language cases were created using Google Translate.
Some translations were altered for clarification.
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