The information on this page is intended to be a guide, and should not be considered a legal authority or a comprehensive interpretation of the Copyright Act. Researchers with a particular concern are urged to seek a qualified legal opinion.

Researchers should be aware that the rules regarding photographs, sound recordings, and audio-visual works such as films and videotapes are particularly complex. Those who are planning to use such works for any purpose other than research or private study should seek additional information. The Archives Library holds a number of works on copyright which may provide further guidance.

What is Copyright?

Copyright is, literally, the right to copy. It is the framework within which creators of original works are entitled to payment for the use of their works. The Copyright Act applies to a wide range of original works, including books, films, diaries, music, letters, sound recordings, photos, and a host of other items found in the holdings of archives and libraries. While a memo from a City bureaucrat about property tax policy may not generate the same interest as Margaret Atwood's latest novel, or a photograph of the first streetcar, all are subject to the rules in the Copyright Act.

How the Copyright Act works

In a nutshell, authors create works in which they hold certain rights for a specified period of time. The Act divides works into different categories, and the rules for determining who owns the copyright and for how long vary, depending on the category of work. The Act also specifies the rights of copyright holders, i.e., there are certain things that only the copyright holder can do with that work. These include the sole right to:

• produce or reproduce a work or a substantial part of it in any form,
• publish the work or a substantial part of it, and
• perform the work or a substantial part of it in public.

These rights last for a specified period of time. After the copyright has expired, the work is said to be in the public domain, and may be used without the authorization of the copyright holder.

The Act includes limited exceptions which permit others to use the work without the authorization of the copyright holder or payment of royalties. Some of these exceptions apply to researchers in archives and libraries. The Act also provides penalties for infringement of the copyright holder's rights.

The Act permits archives and libraries, under certain conditions, to provide researchers with a single copy of certain works for research or private study without the authorization of the copyright holder.

What are the researcher's responsibilities?

A researcher who wants to use a copy of anything in the Archives holdings for a purpose other than research or private study must seek the necessary authorizations from the copyright holder. Examples of uses which require the copyright holder's permission are:

• Making further copies by photocopying, scanning, or other duplication method
• Posting on a webpage or an internet newsgroup
• Publishing (defined in the Act as the issuing of copies to the public in a quantity which satisfies the reasonable demands of the public, having regard to the nature of the work)
• Playing a sound recording or audio-visual work in public
• Presenting certain artistic works at a public exhibition

Once the term of copyright in a work has expired, it is no longer necessary to obtain the authorization of the copyright holder for the use of the work. However, researchers wishing to publish items from the Archives holdings must obtain the Archives' permission to ensure that the source of such items is acknowledged in a standardized fashion.

Locating the copyright holder

It is the responsibility of the researcher, not the Archives, to locate the copyright holder. The Archives may be able to assist in cases where the Archives acquired copyright in the works at the time of acquisition, or where it has the authority to administer copyright on behalf of the City. In these cases you should write to the Archives with a request for the appropriate authorization clearly describing the work(s) and how you intend to use it/them.

Copyright guidelines for different types of material

The following tables provide the general rules for copyright in the following types of holdings in the City Archives:

Notes

Permitted Exceptions
Where more than one permitted exception applies, they are listed in the order in which they would be applied, i.e., the most generous exception is listed first.

Fair Dealing
The fair dealing' exception needs some explanation. The Act provides that it is not an infringement of copyright to deal 'fairly' with a work for the purposes of research, private study, criticism, review, or news reporting. Unfortunately the Act does not define what is 'fair'. A court would look at factors such as:

• the quantity of the work copied,
• the nature of the work copied,
• how the copy was used,
• the value of what was copied, and
• whether what was copied interferes with the sale of the original work.

Copyright Term of 'Life of author + 50'
The phrase 'Life of author + 50' has been used as a short form for the actual term of copyright which is the life of the author, the remainder of the calendar year in which the author died, and a period of fifty years following the end of that calendar year.

• Copyright Act Category: Literary Works
• Note, however, that a book composed mainly of photographs or maps would be considered an artistic work, a book of plays a dramatic work, and a book of sheet music a musical work.
• City Directories are a compilation within the Literary Works category

The 'author' of a photograph is deemed to be the person or corporation who owned the initial negative or (in the case of digital photography where there is no negative) the initial photograph at the time the photograph was made.

To calculate the term of copyright in photographs, you must determine who the 'author' is, i.e., who owned the initial negative or photograph. There are three possible situations.

1. If the 'author' is a natural person, the term is the life of that person plus 50.
2. If the 'author' is a corporation in which the majority of voting shares are owned by a natural person who is the author of the photograph, the term is also the life of that person plus 50. An example would be the case of a photographer who has incorporated his business but who owns all of the shares in the corporation. While the copyright owner is the corporation, the term is based on the life of the natural person who is the majority shareholder.
3. If the 'author' is a corporation in which the majority of voting shares are NOT owned by a natural person who is the author of the photograph, the term is 50 years from the making of the photograph. An example would be the case of a photograph taken by the employee of a newspaper. The newspaper owns the initial negative. The newspaper is a corporation with many shareholders. In this case the term is not based on the life of an individual, but on the date of the making of the photograph.

The 'maker' of a sound recording is defined as the person who undertakes the arrangements necessary for the fixation of the sounds. Such arrangements would include entering into contracts with performers, as well as financial and technical arrangements.

Note that, depending on the content, a sound recording may contain more than one copyright. For example, a recording of someone singing a song could include a copyright in the song (a musical work), a copyright in the performance, and a copyright in the sound recording itself.

The author of a cinematographic work is the person by whom the arrangements necessary for the making of the work are undertaken.