5 Key Copyright Law Concepts for Canadian Museums

Copyright law is an extremely important issue for any Canadian museum, but also an issue that is not always easy-to-understand.  This post reviews 5 key copyright issues that should be top priority in any Canadian museum or archives. How does your museum manage its copyright issues?

Copyright Law for Canadian Museums

Who Owns Copyright?

Canadian copyright law and museumsThe author of a work is the first owner of its copyright.  There is no single definition of author in the Canadian Copyright Act.  Generally, the author is the person who creates the work, or the first person to express the idea in a tangible form; for example, the person who puts the work on paper or otherwise “fixes” it. A person who writes a book is its author and a person who designs graphics for a Web page is the author of those graphics.

Does a museum own the copyright in works in its collection?  That depends!  If the work is acquired without an actual transfer of copyright, then the copyright remains with the author of the work.  If the work was created in the course of employment as part of the duties of the employee, then the museum owns that work (e.g., research document or video.)  If the work is a commissioned photograph, portrait or engraving, and the museum commissioned it, then the museum owns the copyright in that work.  All other commissioned works belong to the creator of that work, unless there is a written agreement to the contrary.

What is the Exhibition Right?

A copyright holder has the right “to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan.” The right does not apply to artistic works that are presented for the purpose of “sale or hire” (e.g., sales by commercial galleries or art dealers).

Whether a particular situation would constitute a presentation at a public exhibition depends on the facts in each particular case. Factors that may be taken into consideration include the physical location of the work, the size of the audience, and the purpose of the exhibition.  An “exhibition” would probably not include a painting hanging on a living room wall.

What is the Duration of Copyright Protection?

Copyright in published works endures for fifty years after an author’s death, until the calendar year end.  This is the life‑plus‑fifty rule.  For example, if a writer died on April 26, 1970, copyright in his books expires on December 31, 2020.

Although life-plus-fifty is the minimum duration set out in the leading international copyright convention, the Berne Convention, the U.S. and European Union countries protect copyright for life-plus-seventy.

The term of copyright is determined by the life of the author — not by the life of the owner of copyright.  Even where copyright has been transferred, the duration of copyright is still determined by the life of the author.

How do you Obtain Permission to Use a Copyright Work?

Only a copyright owner, or a person authorized by her, can give permission to use copyright protected material.

Finding the owner of a copyright work is not always straightforward. You should contact one of the copyright collectives if one exists with respect to that type of work, other subject-matter, or the relevant rights. In the case of a published work, contact the publisher, producer and so on to help you establish the whereabouts of the copyright owner. You may also want to contact any associations or organizations who might have some contact with, or knowledge of, the copyright owner. The Internet may also be a helpful aid in locating a copyright owner.  Search the Copyrights Registers at the Canadian Copyright Office.  Since copyright registration is not mandatory in Canada, not all copyright owners will be listed there.

Many museums now have a Copyright Policy which is a single document that sets out that particular museum’s procedure for clearing copyright in a work.  Anyone in the museum who needs to obtain permission must follow the steps set out in the Policy.

Are there any Exceptions in the Canadian Copyright Act for Museums?

There are specific exceptions for libraries, archives and museums (“LAMs”).  These LAMs must not be established or conducted for profit, and must not be part of or administered by a body that is established or conducted for profit (such as a special library like the one at IBM). The LAM must hold and maintain a collection that is open to the public or to researchers.

The exceptions allow a LAM to make a copy of a copyright work for the maintenance or management of its permanent collection. This mainly applies to preservation of documents and for internal record-keeping.  A LAM may reproduce on behalf of a patron anything that the patron would be permitted to copy under the fair dealing provision.  This copying requires a written proviso that the copy be used solely for the purposes of research or private study.

A single copy of an article in a “scholarly, scientific or technical periodical” may be made by a LAM, as can a single copy of an article in a “newspaper or periodical” published more than one year before the copy was made. Certain conditions apply, and records must be kept.   A LAM may make a single copy for a patron of another LAM, but both the article and the copy must be in printed form.

Archives may copy an unpublished work deposited in the archive provided a number of conditions are met.  Copies cannot be made if the copyright holder has prohibited copying of the work.

See the Certificate in Canadian Copyright Law 

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