Jean Dryden

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11 March 2011


From: Dr. Jean Dryden

Re: Consultation on how to implement an extended general term of copyright protection in Canada

A. Introduction

My name is Jean Dryden and I have a long experience in archives as a staff archivist and an archives administrator. I am an internationally recognized expert on copyright in archival material. My doctoral dissertation (Toronto 2008) investigated the copyright practices of Canadian archival institutions when digitizing their holdings and making them available online. While at the University of Maryland, I completed a comparative study of American archival practice in the context of U.S. copyright law. Since 2015, I have represented the International Council on Archives at the World Intellectual Property Organization's Standing Committee on Copyright and Related Rights. I hold a Master of Laws degree specializing in intellectual property from Osgoode Hall Law School at York University.

The archival mission is to acquire and preserve records of enduring value, and make them available for research. Any extension of copyright term is anathema to our fundamental mission, so the inclusion of a 20-year term extension in CUSMA was extremely disappointing. It is encouraging to see that the government has recognized that any term extension will have significant negative consequences for libraries, archives, and museums (LAMs) whose holdings include archival material.

Options 1-3 directly target orphan works and out-of-commerce works preserved in LAMs. Regrettably, although some of these options may be suitable for published works held by LAMs, none is workable for the billions of orphan works held in archival collections. Option 4 is unworkable for many unpublished orphan works because it is impossible to know when the author died and when such works reach the 20-year threshold that would mark the beginning of greater access. Option 5 proposes an excessively long copyright term that exceeds what is required by CUSMA when the term is triggered by the date of creation.Footnote 1

B. An Alternative Solution

Thus, I wish to present an alternative solution in the form of an additional exception for LAMs. The proposed exception mitigates the effects of term extension for the billions of unpublished orphan works preserved in the archival collections held by LAMs. Furthermore, it codifies established professional practices for making archival holdings available online, practices that have not, to my knowledge, resulted in copyright litigation. As the Supreme Court noted in the context of fair dealing, "It may be relevant to consider the custom or practice in a particular trade or industry to determine whether or not the character of the dealing is fair."Footnote 2 The following proposal provides a made-in-Canada solution to orphan works deposited in LAMS.

1. Justification

The beneficiaries are non-profit LAMs, since libraries and museums (as well as archives) preserve and maintain archival collections.

This proposed exception is limited to unpublished orphan works in the permanent collections of non-profit LAMs. Few realize the magnitude of the orphan works problem – there are billions of orphan works in LAMs. Where the rights holder is known, archivists seek the necessary permissions. However, most archival holdings were not created for commercial purposes. Consequently, they were not published and are of little monetary value. Identifying and locating the rights holder(s) of eachwork is extremely time-consuming, laborious, and often fruitless. The effort required is wildly out of proportion to the monetary value of the works involved.

Archival materials consist of textual documents, photos, film, audio, and digital records. Determining the monetary value (if any) of individual works is also laborious and time- consuming. Even if it had the resources, the Copyright Board lacks the expertise to determine the value of thousands of unpublished orphan works.

Those who deposit records in archives do so because they want the material to be available for research. Increasingly, researchers expect that the material will be available online, an expectation that has been heightened during the pandemic when archives and libraries were closed, and only digital access was possible.

Archivists deal in aggregates rather than items. That is, the materials created and received by an organization, family, or individual are treated as a unit, which contains many individual works. Since the whole of an archival collection is greater than the sum of its parts, when selecting digitization projects, archivists prefer to digitize entire collections so that researchers understand the context of the records and the relationships between items. Omitting the orphan works does an immense disservice to researchers because it skews the understanding of the material.

The magnitude of the orphan works problem implicates any record-keeping requirement. Any requirement to keep records of searches for rights holders, uses, or commercial availability of thousands of individual works would be onerous, and to what end?

As a municipal archivist in Nova Scotia said, "… we spend hours searching for obituaries or addresses of next-of-kin or business registrations and still come up with uncertainty about who and where the copyright owner is. It is also a complicated task to keep track of the research done, dates of death and the permissions given. It feels like a large investment in time to comply with a requirement that is needed for only a narrow band of creative works and creators."

This is clearly an area in dire need of realistic measures to mitigate the effects of term extension. The following exception offers a viable solution to the orphan works problem by facilitating access to this material without causing undue harm to copyright owners.

2. Proposed text

30.22 (1) It is not an infringement of copyright to make a copy of an unpublished work or sound recording that is deposited in the permanent collection of a LAM and make it available to the public (OR communicate it to the public by telecommunication) for the purposes of research or private study, provided that:

  1. This exception applies to orphan works created more than 25 years ago.
  2. The copies are accompanied by a message that says: (a) that the copy is to be used solely for the purpose of research or private study and (b) that any use of the copy for a purpose other than research or private study may require the authorization of the copyright owner of the work in question.
  3. The quality of the copy made available online is suitable for research and private study only [but not publication]
  4. The work will be removed if the copyright owner comes forward and no agreement can be reached regarding continued use of the copy by the LAM.
  5. The copyright owner cannot be identified or located after a reasonably diligent search.

(2) The LAM may copy the work only on the condition that

  1. the person who deposited the work, if a copyright owner, did not, at the time the work was deposited, prohibit its copying; and
  2. copying has not been prohibited by any other owner of copyright in the work.

(3) No action referred to in section 30.22 may be carried out with motive of gain.

(4) A library, archive or museum, or person acting under its authority does not have a motive of gain where it or the person acting under its authority, does anything referred to in section 30.22 and recovers no more than the costs, including overhead costs, associated with doing that act.

(5) No statutory damages may be awarded against a LAM that is sued in circumstances referred to in s 38.2.