Copyright Legislation in Canada

The copyright information posted on this site addresses the specific concerns of the MEDART-L list. Frequently, our discussions pertain to a particular image or work of art. In these instances it is useful to refer to a common image.

In order to post an image on the MEDART-L image WEB site copyright permission must be secured. The right of reproduction includes digital reproductions. If you make an electronic version of a photograph, you are making an electronic reproduction of it and must obtain permission to do so.

Contents

  1. What you need to know to acquire copyright permission for images posted on the MEDART-L image site

  2. Scanning photographs and other images

  3. Duration of copyright
    Photographs made prior to 1944
    Photographs made on or before January 1, 1944

  4. Differences between copyright laws in Canada and US
    Moral Rights

    Educational Institutions and Fair Dealing

    Further information about Copyright
    Canada http://cipo.gc.ca/
    United States
    http://www.utsystem.edu/ogc/IntellectualProperty/cprtindx.htm

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1. What you need to know to acquire copyright permission for images posted on the MEDART-L image site

MEDART-L is located at the University of Toronto, an educational and Canadian site, hence governed by Canada's Copyright Act and the two international agreements in which Canada participates, the Berne Convention, and the Universal Copyright Convention (as of March 1, 1995). Canada's Copyright Act was amended in 1997.

Most of the art and architecture that we discuss on MEDART-L belong in the public domain. However, the images or photographs that we scan and convert into digital images do not.

2.  Scanning photographs and other images

You require permission to scan a copyright work into a computer and to adapt or manipulate it. This includes a photograph, slide, or image from a journal, book or other medium.

Copyright permission must be granted by the first owner of the image.

The author (the person who owns the initial negative) is the first owner of the photograph. If the author who owns the original plate is a corporation, than the corporation is the first owner of copyright.

Therefore, a photograph from a book or journal cannot be scanned into a digital image unless copyright permission is obtained from the journal or publisher who owns the initial negative for the photograph. If the negative is owned by a photographer who was employed by the publisher, the copyright permission to reproduce it must be obtained from the photographer who owns the negative.

It becomes more complicated where the photograph was commissioned. For in these instances, the person or corporation who commissioned the work is deemed to be the first owner of the copyright.

3. Duration of copyright
Photographs made prior to 1944

Photographs made before January 1, 1944 have copyright protection for fifty years from the making of the original negative from which the photograph was directly or indirectly derived.

Photographs made on or before January 1, 1944
The Copyright Act provides copyright protection for a period of fifty years from the end of the calendar year of the making of the initial negative or other plate from which the photograph was made.

4.  Differences between copyright laws in Canada and US
Moral Rights

When using digital images of works of art, one must take into account an artist’s "moral rights". This does not apply to works in the public domain. The only exceptions to this clause are works defined as plans, charts and maps. While moral rights may not be re-assigned, they can be waived by the author in whole or in part. An assignment of copyright does not include a waiver of moral rights. This must be expressed as a distinct waiver. Waiving moral rights means to agree TO NOT to exercise them. Moral rights are personal rights and hence belong only to the author of the work. Moral rights subsist for the same term as the copyright in the work and may be passed, on the death of the author to another. Which means that such bequests must also be checked if there will be any mutilation or distortion of a work. These bequests of moral rights conferred by the author exist for the expiry of the copyright and can be exercised by the author’s heirs.

Moral rights include the author’s right to be associated with the artistic work by name or pseudonym or to remain anonymous, the right to the integrity of the work (that is, the right to not have the work distorted, mutilated or modified and to prejudice the author’s honour or reputation, and the right from being used in association with a product, service or institution). Moral rights extend to photographs and other artistic works, which, in theory, appear to include databases and digital images.

Moral rights are an area where Canadian legislation differs from that in the United States. Based on the Berne Convention’s definition and defined in the Copyright Act, Section 14(1) in conjunction with Section 28.2, states that moral rights apply equally to all works which are copyrightable, irrespective of whether the work was created for commercial or educational purposes. This differs from the United States’ interpretation of moral rights in the new law VARA, which does not include photographs made for commercial purposes nor for works of art commissioned or used in advertising.

The problem lies in how we define "mutilation" and "distortion" which has yet to be clarified. This is especially relevant in terms of digital images, which can so easily be altered. Due to space or for education purposes, for example, it is not uncommon to use a portion of a work rather than the whole work. Is this mutilation? When an image has deteriorated over the years, is colour-correcting the image a distortion? In regards to digital use, it is not uncommon to use a portion of a work rather than the whole work. This may be done due to space requirements or other similar considerations rather than that of deliberate malice. The problem is that the legislation for altering images is does not cover all the situations, which face authors of digital works. In digitising an image that has deteriorated over the years, however, it may be necessary to colour-correct the image.

For this reason, it is always important to check if moral rights are being violated. In the case of Canadian legislation, it also applies to copies of originals as well as the originals. There has been an attempt to argue that, like the United States, Canada’s Copyright Act infers moral rights on original works. However, to-date, this has not succeeded. So as the legislation stands now, moral rights apply to originals and their copies and must be waived by copyright holders if the creator of a database of images is to have the freedom to present only "close-ups" or "full-views" of a work of art in this hypothetical cyberspace project.

Educational Institutions and Fair Dealing

In the recent amendments (Bill C-32) to the Copyright Act, the concept of "fair dealing", a different idea from the United States’ concept of "Fair Use", has been broadened to protect libraries, archives and museums use of "copyrightable material". The wording in the Act has remained the same. Under exceptions to the infringement of copyright, fair dealing is defined as "any work for the purposes of private study or research". The Act has been broadened by explicit references to what "private study or research" means and whom it effects. Libraries, archives and museums now have explicit references and definitions in the Act.

Without copyright permission for the reproduction of works of art, with permission to scan photographs which may belong to others or printed in other sources, a project like the MEDART-L Image site could be made available at one workstation located "on the premises of an educational institution" for the purpose of "private study or research". However, without all the required permissions the image site is not legally entitled to be on the Internet.

Further Readings:

Lesley Ellen Harris, Canadian Copyright Law Whitby: McGraw-Hill Ryerson Limited, 1995 and 1996.

H. Sonne
Listowner
MEDART-L