Copyright and Clarity
I recently took a course on copyright law. A number of the questions that came up during the course could not be answered with a simple yes or no; often the answer was “in this circumstance, you should talk to a lawyer.” The course made it clear that there are many misconceptions about copyright. For example, several people taking the course believed that you could freely use copyrighted materials if you were not profiting from your use of these materials.
The copyright questions that librarians have to wrestle with often fall into the grey areas of copyright law. As a result librarians tend to take a very conservative approach to copying materials. In some situations, I have talked to a publisher just to clarify whether a given use was acceptable. At work we include a field in the library catalogue indicating what an item’s copyright status is so that both the library staff and users are aware.
The trouble with taking a conservative approach to copyright law is that it results in unnecessary restrictions. One organization that my library uses for interlibrary loan will not send PDF copies of material for copyright reasons; instead the copies must be faxed to us.
A conservative approach to copyright can also prevent users from accessing materials in the public domain. Take, for example, HathiTrust, an initiative to provide “long-term preservation and access services for public domain and in copyright content from a variety of sources“. Unfortunately for Canadians, HathiTrust limits what can be accessed by users outside the United States for copyright reasons, so even though an item is in the public domain in Canada, it may not be accessible on HathiTrust. This is frustrating given that Canadian copyright law is currently lifetime plus 50, as opposed to lifetime plus 70 in the United States.
Electronic databases also have their challenges. The licence for an electronic resource may place greater restrictions on use than what would otherwise be allowed under copyright law, so licence agreements should be read carefully. (For this reason in my library we keep a binder of licence agreements for easy reference.)
Fortunately the Canadian Association of Law Libraries (CALL) has taken an active role with regards to copyright in law libraries. In 2012 Mary Hemmings, then the Chair of CALL’s Copyright Committee, spoke to the Legislative Committee on Bill C-11 about the Copyright Modernization Act. She emphasized the importance of users being able to “reproduce federal legislation for personal, non-commercial uses” and urged the government “not to restrict the public’s right to access what should be in the public domain.”
Crown copyright is a good example of a situation in which there is little benefit in restricting use. Legislation, both federal and provincial, should be freely available, and any limitations on their use should be clearly communicated. There was a non-commercial licence for government materials on the federal Public Works and Government Services website, but in 2013 it disappeared. Users now have to contact the department or agency that created the information directly to request copyright clearance: a step backwards.
While it is important that content creators are fairly compensated fairly for their work, copyright law should not be penalizing users when there is no corresponding benefit to copyright holders. Clearer copyright law benefits both creators and consumers. Alas, it seems unlikely that the current copyright regime is going to get simpler any time soon.
As for Federal laws, see:
Reproduction of Federal Law Order SI/97-5
http://laws-lois.justice.gc.ca/eng/regulations/SI-97-5/FullText.html
“Anyone may, without charge or request for permission, reproduce enactments and consolidations of enactments of the Government of Canada, and decisions and reasons for decisions of federally-constituted courts and administrative tribunals, provided due diligence is exercised in ensuring the accuracy of the materials reproduced and the reproduction is not represented as an official version.”
Re that Order – which is a good thing, generally – I have never understood why copyright law should be used to support accuracy of copying. Is the Crown asserting a moral right in the work of Parliament or the courts? Why is it a breach of copyright to copy something poorly but not to copy it exactly? Would not the market, or general reputation, deal severely with someone who published inaccurate versions of laws or judicial decisions?
If statutes (including, say, the Criminal Code) are published inaccurately and represented as an official version, couldn’t that induce people to break the law while thinking they were complying?
Regarding copyright and laws, one thing that on a personal level has bothered me since I found out about it, is how provincial governments will enact laws that incorporate by reference standards published by a non-governmental entity, so that to know and comply with the law (and there are penalties for non-compliance) requires purchasing a copy of the standard (e.g. electrical code, building code, etc.). I think all laws and regulations should be published on the Internet at least, for free. If a government wants to incorporate by reference material a third party owns copyright in, pay them and make it freely available.
I had read a few years ago about a lawsuit going on between the CSA and a publisher regarding the Canadian Electrical Code which gets to some of these issues and I found in a search: http://www.restorecsa.com/lawsuit which has links to some pleadings.
I have no issue with the prohibition against representing private copies as the official version. But if someone was led into committing a crime in such circumstances, an action for breach of copyright does not seem like the right remedy – and the inadvertent criminal could not assert it anyway.
Ontario deals with the incorporation by reference issue in the Legislation Act, 2006:
Section 62 makes the incorporation by reference of a private document a static incorporation, so the law at the time of incorporation remains the same even if the incorporated document later changes.
Subsection (4) says this:
There is more than ample clarity about current Canadian copyright law and jurisprudence on the subject of fair dealing. Sadly, however, there is considerable lack of clarity amongst many who work and even advise in this field. If an institution has good copyright guidelines, such as U of T (yes, I was involved), there will rarely be any need for a librarian to consult a lawyer about copyright.
Instead of continuing in a confused state of FUDD about what can and cannot, or should or should not, be done, Canadian librarians should actually read for themselves:
• the three Supreme Court of Canada fair dealing decisions, namely the CCH v. LSUC, SOCAN v. Bell and Province of Alberta v. Access Copyright cases
• the Copyright Act – particularly section 29 which provides generally for fair dealing, and which the SCC has said is “always available”. You don’t even have to look at the nit-picky little exceptions that follow if s. 29 gives you what you need for your “users’ rights”. See CCH v. LSUC para 49
• the open access books edited by Michael Geist
• the book by Sam Trosow and Laura Murray
• blogs by Michael Geist, Ariel Katz , me among others
Sadly, there are too many in the library and educational establishment in Canada, and even some who advise them, who continue, for whatever reasons, to needlessly worry about all of the things they think they cannot do instead of focusing on what Parliament, the Supreme Court of Canada, and reliable scholars have clearly said that they can do.
John Gregory,
I agree it’s made available, my issue is it’s only made available to those who pay several hundred dollars for a copy, it’s not published like e-laws.
See e.g. http://www.esasafe.com/contractors/the-ontario-electrical-safety-code
John:
The Federal Reproduction of Federal Law Order SI/97-5 was arguably unnecessary even at the time it was put in place in 1997, but it was useful to calm anxious librarians and others.
In any event, after CCH v LSUC in 2004, nobody can seriously suggest that the reproduction of any statute, statutory instrument or judgment of a court or tribunal could contravene copyright law in Canada.
As for accuracy, that can be a problem. Errors do happen. I once had to correct a serious error (I recall that it was something like the omission of the word “not” in some important provision) in the Carswell edition of the Canadian IP statutes edited by a couple of prominent Canadian law professors. That may not give rise to copyright infringement – but one should always have recourse to the original if the context is critical.
I don’t think librarians worry overly about copying legislation or case law. But government materials also include reports and other publications that are useful to have copies of. There are no electronic versions of a number of the older government materials, so that’s why it was nice to have a centralized a non-commercial licence.
Libraries also get asked to copy books, articles, and other non-governmental materials (which are most definitely copyrighted), and that’s where the uncertainty is about what/how much can be copied. For example, can you copy a whole article from an issue of a journal that contains 10 articles? What about if there only 3 articles?
Yes, librarians may be able to defend the use as “fair dealing” in court, but we don’t want to get to the stage where we have to defend it in court (if the publisher perceives the use to *not* be fair dealing and is willing to sue). Thus the conservative approach.
I don’t know how or if copyright law can be used to ensure accuracy in copying, but the discussion reminds me of the famous “Wicked Bible”, published by James Butler, the licensed official printer, in 1631, in which the word “not” was omitted from the sixth commandment, instructing readers, “Thou shalt commit adultery.” Both the King and the Archbishop of Canterbury were outraged. Unlike Carswell for its egregious error in the consolidated IP statutes, the printer was called to the Star Chamber and fined 650 pounds.
Louis:
According to this http://goo.gl/r6jmRr, the fine was only “£300 – some £35,000 in today’s money” (the article is from 2010).
Interestingly, according to the 2010 article, a surviving edition in good condition has been offered for as much as $99,500.
I should look for my defective Carswell edition – maybe it’s worth big bucks ;-)