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A Comparison of Canadian and U.S. Copyright Law Pertaining to Libraries and Archives Sections 30.1 to 30.

5 of the Canadian Copyright Act (R.S.C. 1986, c. C-42) deal with particular exceptions for non-profit libraries, archives, and museums (LAMs), whether independent or part of an educational institution (s. 30.4). A LAM may make, for its own permanent collection, a copy of a published or unpublished work in its collection, under one of the following circumstances: the original is rare and/or deteriorating; the original is delicate and the copy is made for on-site consultation; to copy in an alternative format if the original format is obsolete; for record keeping; for insurance or police investigations; for restoration. Reproductions under the first three circumstances may be made only if there are no commercially-available copies. Any intermediate copies must be destroyed (s. 30.1). LAMs may also do anything on behalf of a person that the person could do under the fair dealing provisions respecting research or private study. LAMs may make single reprographic (i.e. not digital) copies of a scholarly article, or a newspaper or periodical article more than one year old, for a person requesting it for research or private study only. Digital copies may be sent from one LAM to another, but the copy given to the patron must be a physical one (s. 30.2). Unpublished works that are deposited with an archive may be copied by the archive so long as the depositor or other copyright holders do not prohibit copying, and only a single copy is made for a patron requesting it for research or private study (s. 30.21). Section 29.3 provides that ss. 30.2 and 30.21 cannot be undertaken for gain. LAMs do not infringe copyright where a patron uses its equipment to make reprographic copies of works (e.g. by photocopy), if the equipment displays a notice warning of the potential for copyright infringement, and if the LAM has entered into an agreement with a copyright collective (s. 30.3). The national Library and Archives of Canada (LAC) may copy a representative sample of a copyrighted work for purposes of preservation. The LAC may also fixate a work that is communicated by telecommunication (for example, by printing a web page), copy a work while it is being broadcast to the public by telecommunication, and make a copy of a recording that has historical or archival value (s. 30.5). The U.S. copyright law (Title 17 of the United States Code, 2009) contains a set of exceptions for libraries and archives: s. 108 Limitations on Exclusive Rights by Libraries and Archives. A publicly-accessible library or archive may create a copy for itself of a published copyrighted work, or to distribute such copy, if there is no commercial benefit, and the copy includes a notice of copyright. This copy may only be in facsimile form (such as paper or microfilm) rather than machine-readable form (s. 108(a)). An unpublished work in the library or archive's collection may be reproduced in three copies for the purpose of preservation. Digital copies are permissible, but may only be

made available on the premises of the institution and may not be otherwise distributed (s. 108(b)). Published works may also be reproduced in three copies for reasons of replacement or obsolescence if a fairly-priced replacement cannot be found. Again, digital copies are only to be available on the premises (s. 108(c)). An article, a chapter, or a small part of a copyrighted work may be copied for interlibrary loan for private study, scholarship, or research. The order form must include a notice of copyright, and the copy becomes the property of the user (s. 108(d)). An entire work may also be copied for interlibrary loan if the it has been determined that it cannot otherwise be obtained at a fair price (s. 108(e)). A library or archive will not be held liable for any copyright infringement that occurs from the unsupervised use of its copying equipment, if the equipment displays a notice warning users that copies may be subject to copyright law (s. 108(f)(1)). There are no limitations on copying and lending by libraries and archives of audiovisual news programs, subject to the clauses of subsection (a) above that is, that there is no commercial gain, that the collections of the library or archive are not closed, and that a copyright notice appears on each copy (s. 108(f)(3)). The rights of fair use (s. 107) and any contractual or licence obligations entered into by the library or archives are unaffected by the provisions of s. 108. The limitations on exclusive rights afforded in s. 108 do not extend to the concerted reproduction or distribution of multiple copies of the same material, or to the systematic reproduction and distribution of copies to another library or archives as a substitute for its own subscription or purchase of the work (s. 108(g)). During the last 20 years of the copyright term of a published work (for works whose authors have been deceased 50 years this provision was passed in response to copyright term extensions), a library or archive may reproduce and distribute the work or portions of it for preservation, scholarship, or research, unless the work is subject to normal commercial exploitation, or a copy of it can be obtained at a reasonable price (s. 108(h)). The exceptions in s. 108 do not apply to musical works, works of art (unless they are illustrations or diagrams contained in other works), or non-news audiovisual works (s. 108(i)). Comparison The Canadian LAM exceptions are rather narrower than the equivalent American exemptions. For example, under Canadian copyright law, only non-profit institutions are eligible to take advantage of the provisions (see s. 2 of the Copyright Act). The U.S. law stipulates only that the library's or archive's collection be open to the public, or to researchers not affiliated with the institution of which it is a part, and that the reproduction or distribution itself of the copyrighted works not be for commercial gain.

U.S. law allows libraries and archives to make at least one copy of a work and distribute (lend) the copy subject to three conditions (no commercial advantage, collection open to public, copyright notice). By contrast, the Canadian LAM exceptions delineate the specific conditions under which the single copy can be made (some of these conditions being subject to the work's commerical non-availability), creating a much narrower scope within which librarians and archivists can work. Copying works for interlibrary loan in Canadian copyright law is limited to single articles from a larger work for purposes of research or private study, whereas the U.S. code allows for the copying of contingent parts (such as an article or chapter) of any copyrighted work for interlibrary loan, or indeed an entire work if it cannot be obtained at a fair price. Both sets of provisions address digital copies, although the Canadian law only explicitly addresses them in the context of interlibrary loan. In the U.S. law, digital copies are permissible but may only be made available on the premises of the institution (or, in the last 20 years of a copyright term, a digital copy may be distributed where the work is not commercially available). The American law contains a specific exemption for audio visual news programs. This provision is known as the Baker Amendment or the Vanderbilt Clause, having been proposed by Senator Howard Baker in 1976 for the purpose of protecting the activities of the Vanderbilt Television News Archive. Canadian copyright law, by contrast, has no such special exemption for LAMs in general; however, the Library and Archives of Canada may make copies, for its collection, of audiovisual recordings that have historical or archival value. Comparison of fair use / fair dealing provisions In addition to the particular exemptions for libraries and archives, Canadian and U.S. copyright laws each provide a general exemption known as fair dealing and fair use, respectively. This general exemption is in addition to, and unaffected by, the library and archives exemptions. Fair dealing for the purpose of research and private study does not infringe copyright (s. 29 of the Canadian Copyright Act), nor does fair dealing for the purposes of criticism, review, or news reporting infringe copyright, so long as the source and any authors, performers, makers, or broadcasters are mentioned (ss. 29.1, 29.2). The Copyright Act itself does not define fair, but the 2004 Supreme Court case CCH Canadian Ltd. v. Law Society of Upper Canada (2004 SCC 13) analyzes it in terms of: the purpose of the dealing; the character of the dealing; the amount of the dealing; whether any alternatives are available; the nature of the work, and; the effect on the market for the work (at paras. 53-60). The LAM exceptions under Canadian copyright law incorporate parts of fair dealing by reference in that a library, archive, or museum may do for a patron anything that the patron could do under fair dealing provision respecting research and private study. The CCH case confirms that fair dealing is available to LAMs, stating that [it]t is

only if a library were unable to make out the fair dealing exception under s. 29 that it would need to turn to s. 30.2 of the Copyright Act to prove that it qualified for the library exemption. (at para. 49) Fair use in U.S. copyright law is, like its library and archive exemptions, broader in scope than its Canadian equivalent. It is not an infringement of copyright to fairly use (e.g. reproduce) a work for purposes of criticism, comment, news reporting, teaching, scholarship, or research. Whether a use is fair is determined by examining: the purpose and character of the use; the nature of the work; the amount of the work in relation to the whole, and; the effect on the market of the work (s. 107). The Vanderbilt clause The Vanderbilt Television News Archive (VTNA) is a private, not-for-profit organization based at Vanderbilt University in Nashville, Tennessee. Since 1968 it has videotaped the evening news broadcasts of the major American networks (ABC, CBS, and NBC, and later CNN and Fox News). The tapes are available to be viewed on-site; alternatively patrons can request a copy on VHS or DVD (for a processing fee) for reference, study, class instruction, and research. The archive also offers subject compilations. These activities do not infringe the networks' copyright due to a specific provision in the United State copyright code (s. 108(f)(3)). Students and faculty of subscribing universities can access limited streaming video via the site's web page; streaming video is not covered by the s. 108 exception and is licensed separately in partnership with the networks.1 The addition of s. 108(f)(3) to the amended U.S. copyright code in 1976 was predicated on two things: the socio-political environment of the United States in the early 1970s, and legal proceedings brought by CBS against Vanderbilt University. Events such as the Vietnam War and the Watergate scandal made for a turbulent beginning to the 1970s. Ordinary citizens became keenly interested in the federal government's business, and the main sources of up-to-date information were newspapers and nightly news broadcasts. The government, for its part, was concerned that national news programs exhibited bias against the Nixon administration.2 Conservatives, in fact, were prominent early users and cheerleaders of the VTNA, although the services were used by those on both sides of the political spectrum, as well as private interests.3 The availability of historical television news broadcasts was considered vital to the public's political interests.4 In 1970, Senator Howard Baker (R-TN) introduced a bill (to preserve, for purposes of study and research, certain news and public interest programs) that would mandate the Library of Congress to obtain and archive nationally televised evening news programs (as it does with newspapers) in order to preserve a unique record of the historical events of our time.5 The bill acknowledged the widespread impact of news programs not only on the ordinary public, but also as a source of research for social scientists.6 Although Baker acknowledged the activities of the Vanderbilt Television News Archive, his proposal would shift the responsibility and cost to the federal government. Representative Richard

Fulton (R-TN) introduced a similar bill in the House of Representatives.7 The bills died upon the adjournment of Congress, and Baker re-introduced his bill in 1971 (S 1169) and 1973 (S 2497), while Representative Spark Matsunaga (D-HI) proposed similar legislation in the House of Representatives in 1971 (HR 35) and 1973 (HR 2853); none of them passed. None of the prior bills were necessarily intended to be amendments to the copyright code, but legal actions by a major network advanced the discussion in another direction. On December 21, 1973, CBS initiated proceedings against Vanderbilt University (VU), charging it with violation of copyright and illegal use of CBS property.8 (CBS had previously contacted the VTNA to propose a free licensing scheme that would allow for on-site use of taped programs but no excerpting, abstracting, or indexing. The VTNA considered these other uses of the programs to be necessary for useful archiving and so turned down the proposal.9) In VU's first motion to dismiss, it claimed that the public interest should prevail over any proprietary claims by the network. Specifically, it argued, the First Amendment rights of free speech and freedom of the press would be negatively affected if the news networks could monopolize the speech of public officials through technology and claims of copyright.10 In the second motion to dismiss, VU claimed that CBS's copyright registrations were invalid because television broadcasts are not copyrightable.11 (Note that at the time of the litigation, television broadcasts were not statutorily protected by copyright; this protection only appeared with the comprehensive copyright amendments of 1976.12) CBS, for its part, responded that copyright attaches to the program itself, not the broadcast.13 CBS's legal action against VU served as an alert to Congress that by making reproductions of television news programs (whether done by a private enterprise or by the Library of Congress), there would copyright issues to settle. Senator Baker responded by adding to the copyright revision bill an amendment that would specifically exempt operations such as the VTNA from copyright liability.14 The original clause as put forth to the Senate stated that nothing in this section shall be construed to limit the reproduction and distribution of a limited number of copies and excerpts by a library or archives of an audiovisual news program...15 The later addition by the House of Representatives of the limiting words [distribution] by lending was meant to preclude certain further uses of the work by the recipient.16 Thus the Vanderbilt clause became entrenched in the new 1976 copyright code, while the legal action taken by CBS against VU became moot and CBS requested dismissal without prejudice on December 20, 1976.17