Lab 15: Copyright in Digital History

The Function of Copyright

  • a contest joining 3 parties
    • authors/creators
    • copyright industries
    • users/public

Origins of Copyright

  • Statue of Anne (1709/10), or "Act for the Encouragement of Learning".
    • usually seen as thinly-veiled protection of the interests of the book trade
  • Decret of 19 July 1793, "Declaration of the rights of Genius"
    • transforms pre-revolutionary "Royal Privileges" into natural rights of authors
  • Copyright clause of the US constitution (1787)
    • makes most explicit utilitarian claim:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. (Article I, Setion 8, Clause 8)

(but cf. Ariel Katz's argument)

Enlightenment Values

  • Authorship/creativity
  • General Good/General Will
  • These rights are fundamentally in tension with each other
  • But c18 political theory familiar with paradoxes of collective action
    • cf. Fable of the Bees, Wealth of Nations

In the Americas

  • US Copyrights limited to American authors
    • an anti-British measure w/ underlying ideology re: freedom of ideas/free societies
  • In Canada: emerges from field of public education

Copyright in Age of Mechanical Reproduction

  • Problems of reproduction greatly increase in early c.20 w/ photography, phonograph,film
  • Again w/ VHS, Cassette tape
  • Greatly increased scope of copyright in US (e.g. 1976 removal of requirement to apply for copyright, repeated increases in term of copyright)

Digital Issues

  • Every act of consumption is a copy
    • which means that the capacity of copyright law to regulate consumption is greatly increased!
  • availability of copying/reconstructing far greater
    • (in 1797 not everyone had a printing press!)

Fair dealing in Canada

  • the "user right" side of the equation.
  • no "such as" clause in definition (cf. US)
    • there used to be doubts about whether we have user's rights here.
      • since 2004 though the courts recognize them explicitly
    • 2-part test:
      1. permitted purpose?
      2. fairness criteria met?
    • Web de-institutionalizes many of these practices,
    • C-11 adds 'education' (limited)

Fair Dealing: Permitted Purposes I

1911 UK copyright law lays out permitted purposes (1921 in Canada):

  • Research
  • Private Study
  • criticism
  • news reporting
  • review

Fair Dealing: Permitted Purposes II

2012 Bill C-11 expands to 3 further purposes:

  • education
  • satire
  • parody

2013 "Copyright Pentalogy"

  • it now appears (after Alberta (Education).and SOCAN v Bell) that most purposes are permitted

Fair Dealing: Criteria of Fairness

  1. purpose of dealing
  2. character of dealing
  3. amount of dealing
  4. alternatives to dealing
  5. nature of the work
  6. effect of dealing on the work

Copyright Terms

death of the author plus 50 years

Photos

Published before 1949

  • Public Domain

Created before 1949 but never published

  • Public Domain

Published after 1949

  • life of author + 50
  • unless a corporation, in which case, publication +50

Toronto Archive Photos

  • flickr feed: most are public domain, despite CC Atttrib license
  • in fonds: license is not explicit and you need to ask permission

Film

  • complicated, EITHER publication +50 years, or life-of-author + 50

Text

  • life of author + 50 years, unless unpublished, in which case complex.

Links

  • embedding of offsite images is probably not copyright violation, but no ruling on that
  • not the greatest practice anyway.

Implicit permission to publish

  • Materials granted to organizations such as CRPM, Campbell House, or the Museum for Childhood, likely imply permission to publish. Burden is on partner organization to ensure they have that permission

Your Photographs

  • photographs you take of materials are your own property, and you have permission to use them as you wish.
  • Reproductions of visual art (posters, etc.) are © the original creator; so, e.g., it is likely legal to reproduce the materials from the walls of the Campbell Museum, given their age.

Archival Materials

  • Materials residing in archival collections are still © the author, so regular copyright term prevails. However, terms of the grant may permit early access.
  • Toronto Archive flickr stream is Creative Commons licensed, so free for you to use.

Implications for us

  • Fair Dealing Exceptions (Research, Education), which is great.
  • your case is more convincing if you analyze the document in a way that could not take place without the document being present. So, using an image or text in an analysis is better than just reproducing them in a gallery.
  • but careful w/ esp. images (no 'parts', so safest to link to externally-hosted images).
    • argument can be made that a low-res image is a "part"; and reproduction of an image from a book or other large work is generally allowed (!)