The copyright law, virtually unchanged in Canada since long before the invention of photocopiers, computer data banks, and instant printing, is in line for an overhaul. A conference will probably be called late this year at which experts can discuss the hundreds of briefs and proposals which have come forward since copyright revision came under serious discussion three years ago.
The law involved is the Copyright Act passed in 1924, which gives authors and publishers certain rights over their products—books and articles, and now also films, and other non-print items.
Copyright protects the "expression" of ideas, but not the ideas themselves (although the legal precedents on this point are complicated). It does not cover inventions or trademarks, which are protected by other laws such as the patent law. In Canada (but not in the United States) copyright protects unpublished as well as published works.
Proposals for revising Canada's copyright laws are focused on a working paper[1] produced in April 1977 by two experts for the federal department of consumer and corporate affairs, which is in charge of copyright through its "bureau of intellectual property".
That working paper examined the copyright law in detail and proposed extensive revisions to it.
More than 100 people and groups submitted briefs about the revisions. The discussion period has gone on and on; now the bureau of intellectual property is preparing a set of papers on specific issues, a conference will be held to receive "a working document", and at some stage a revised copyright law may actually be presented to Parliament.
A major reason for revision is the change over the last fifty years in the technology for storing information and transmitting it.
The copyright law was written in the age of letterpress printing. As the 1977 working paper says, "the present law does not cover certain technological developments, particularly those of sound motion picture film, videotape, sound recordings, television, cable television, photocopiers, information storage and retrieval systems, computers and a range of technological delivery systems".
It explains that technology has created new kinds of artistic work, and computers have created new kinds of informational works "such as indices and compendia, which can effectively compete with the sale and distribution of the original material".
The working paper also notes some changes in "cultural consciousness" which have affected copyright—writers' wish for economic security, government involvement in publishing, Canadian nationalism, and so on.
And changes to Canadian copyright are affected by the two international copyright "conventions" or treaties to which Canada is a party.
One of them is the "Berne" convention, dating from 1886 with several revisions since then, which now "imposes minimum standards of protection" in member countries for works written in other member countries. One major limitation of that convention is that the United States is not a member of it[2].
The U.S. does belong to the other major convention, the Universal Copyright Convention (UCC), which dates from 1955. "It is a `national treatment' convention," the working paper explains, "each member country giving the protection of its own law to nationals of other member countries."
The working paper also deals with the theory underlying copyright law.
"The purpose of copyright, as expressed in the past, has been to guarantee the private property rights of creators," it notes.
"On the other hand, copyright is not solely an economic matter. It can be seen as also embracing moral rights. Creation can be said to be a part of an author's personality and, on that basis, the author should be the person to decide how his work is to be used."
However, the working paper comes down in favour of maintaining property rights as the basis of copyright law—so that its main function is to say who has the right to make copies of a work and get the financial benefit.
These are some of the other issues which arise about Canadian copyright law:
Computer software is of course not mentioned explicitly in the old copyright act, though computer programmes might be classed as "literary works".
The 1977 working paper says the software industry wants protection of some kind for its products, but has tended to rely on contracts rather than copyrights to get that protection.
There are complications—such as who wrote a programme, how it is "published", whether it isn't really an invention (subject to patent rather than copyright).
The working paper concludes that the copyright law should not explicitly mention computer programmes, but that programmes would be protected by copyright "where they fall under existing categories of protected material".
PLR is a proposed system by which someone would pay an author a small fee each time one of his or her books is borrowed from a library. The idea is to compensate the author for the many sales lost because people borrow the book rather than buy it.
PLR in one form or another is in effect in the Scandinavian countries, Australia, New Zealand and a number of other places.
Some authors' organizations have urged that PLR be adopted in Canada; the Canadian Library Association "does not agree with the principle", it said in a brief about copyright revision, though it does favour "the creation of a government fund to increase financial rewards to Canadian life and culture".
The 1977 working paper notes that there are some problems with it including PLR in the copyright law, whatever its merits might be independently. In particular, if it is part of the copyright system, then royalties would have to be paid to foreign authors as well as Canadians, and "This would further reinforce Canada's net- importer status."
So the working paper suggests that PLR not be part of a revised copyright act.
One of the rights provided by law to a copyright owner is "the sole right to produce or reproduce the work or any substantial part". That law was written before the days of xerox machines, but photocopying is clearly a form of "reproducing" and so it is an infringement of copyright to make a photocopy of a work without permission of the copyright owner.
There are various exceptions to that right, such as the one called by the law "fair dealing", and the 1977 working paper takes the position that those exceptions are what deserve the attention, rather than the way a copy is made.
In other words, it says that the law does not need to make special provisions about photocopying any more than about copying books out in longhand.
One complication in enforcing copyright and prosecuting people who make illegal photocopies is that copies can be made very fast, almost anywhere and by almost anybody. And the biggest payment a copyright owner could reasonably demand from someone who made a xerox copy of a work would probably be only a few cents.
"It may very well be that the answer to part of the problem, particularly that of acquiring permission to copy, may lie in the collective assertion of copyright rights," the working paper suggests.
That would involve some sort of organization of copyright owners, which would be authorized to grant permission on their behalf and collect payments ("royalties") when appropriate[3]. A similar organization already exists to collect royalties for music played over radio stations.
That is the label for a major loophole in the copyright law, which allows "fair dealing with any work for the purposes of private study, research, criticism, review or newspaper summary".
That clause lets book reviewers quote from the books they are reviewing; it also, sometimes, lets students and professors photocopy passages from books to use in their studying and research.
Exactly what is protected by the "fair dealing" clause has been left mostly up to court decisions. The defence of "fair dealing" is not needed unless a "substantial" part of a work has been copied, since copying less than that would not be copyright infringement anyway, but "substantial" is not clearly defined in law either.
A recent survey by the book trade newspaper Quill and Quire found sharp divisions on what sorts of copying should be allowed under this heading.
"Librarians tend to agree with creators and other owners that there should not be any multiple copying," Quill and Quire says; "while educators would like to see multiple copying allowed for classroom purposes.
"But users appear to be united in favour of allowing single photocopies to be made, while creators and other copyright owners do not think fair dealing should extend even to single photocopies, especially after a collective has been established. They feel that such a provision would be a loophole for the kind of systematic copying that can occur when, for instance, a class is assigned an article or a chapter in a book to read and each member of the class makes a copy of it."
The law does not give any special protection to a library or librarian who makes a copy of copyrighted material for use by somebody else, even if that somebody else would be protected if he did the copying himself.
The 1977 working paper says the "fair dealing" exception should apply to librarians under those circumstances.
And it says libraries and archives should be allowed to make copies "for the sole purpose of preserving the material which is deteriorating or damaged". (Some librarians and archivists also want to be allowed to make copies ahead of time, before the deterioration has a chance to start.)
However, the working paper says there should be nothing in the law which gives libraries blanket permission to "make one copy of a particular work for another library".
One of the major technological problems involved in copyright is the use of information retrieval systems—divided by the 1977 working paper into four major operations: "input, storage, retrieval, output".
"The input," says the working paper, "can only be made after the work has been translated into computer language. Such `translation' could be said to be permissible only with the authorization of the copyright owner.
"Similarly, storage can be regarded as an `adaptation' of the copyright material to magnetic tape format.
"Retrieval of copyright material could be likened to a `performance in public'.
"Finally, output could be considered a `reproduction' similar to photocopying."
The working paper says that input of published, copyright material should not be an infringement (but that unpublished material could not be input without the copyright owner's permission).
However, it says, unauthorized output, "whether effected by printout, cathode ray tube display, or otherwise", should be copyright infringement.
"In fact," the working paper notes, "this principle is now so accepted that some (information retrieval systems) are already paying royalties to copyright owners, even though the work has not in fact been reproduced, but merely identified as the result of a computer search."
Some owners of material which is likely to be put into information retrieval systems think the input is the use which should be subject to copyright law control, because once the text is inside the system it will be difficult to police the output.
It is up to the copyright owner to take legal action against someone who is infringing a copyright.
At present copyright infringement can be a criminal offence, and the offenders can be fined or sent to jail.
The 1977 working paper recommends an end to those "summary" remedies for copyright infringement. It says copyright disputes should be a matter for civil courts, with the copyright owner having the right to sue for damages.