Copyright Guidelines

1 Introduction

Copyright falls under a larger body of law referred to as intellectual property. Intellectual property law protects the intangible or intellectual aspect of an object, rather than the physical object itself, and traditionally includes 5 areas:

  • Patents
  • Trade-marks
  • Industrial designs
  • Confidential information and trade secrets
  • Copyright

In Canada, laws pertaining to copyright fall under the Canadian Copyright Act. The Act helps define the materials that are protected by copyright, the rights that are protected under copyright, and the duration of copyright on protected items.

However, it is important to understand that as a piece of legislation, the Copyright Act is under constant review and alteration. It is up to your institution to remain informed on revisions made to the Copyright Actthat may affect your collection or exhibits.

2 How Copyright affects Museums

Copyrighted material affects museums in a number of ways that might not be readily apparent:

  • The use of copyright material belonging to others, which can include photographs, paintings, models, sculptures, text etc.
  • The creation of their own copyrighted material such as text, illustrations, photography, and databases
  • Materials within their collection that have had copyright transferred to the museum

3 Definition

The Canadian Copyright Act states that “’copyright’, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right

(a)to produce, reproduce, perform or publish any translation of the work,

(b)in the case of a dramatic work, to convert it into a novel or other non-dramatic work,

(c)in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise,

(d)in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed,

(e)in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work,

(f)in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,

(g)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,

(h)in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program, and

(i)in the case of a musical work, to rent out a sound recording in which the work is embodied,

and to authorize any such acts.”

Once works are completed, they are automatically covered by the Canadian Copyright Act. This protection gives creators exclusive use of their work, and protects the creators’ paternity and integrity- both of which will be discussed further in this document.

4 Duration

It is important to understand that, unlike owning the physical rights to an object, copyright protection cannot last indefinitely. Generally speaking, copyright exists from the life of the creator, the remainder of the calendar year in which the creator dies, plus an additional fifty years following the end of that calendar year. However, in some circumstances there areexceptions when the “life-plus-50” rule does not apply:

  • For photographs taken on or after January 1, 1949, there are three situations that determine term of protection (photographs taken on or before December 31, 1948 are in the public domain):
  • If the creator is an individual, the term is the remainder of the year in which they die, plus an additional 50 years.
  • If the copyright holder is a corporation in which the majority of the voting shares are owned by the creator of the photograph, the term of copyright is still the remainder of the year the creator dies plus an additional 50 years.
  • If the copyright holder is a corporation in which the majority of voting shares is not owned by the creator of the photograph, the term of copyright is the remainder of the year the photograph was made available plus an additional 50 years.
  • Films and videos made since 1944 are copyrighted for the first year of publication plus fifty years.
  • Sound recordings are copyrighted for the year of the making of the initial plat plus fifty years.
  • Works created for, or published by the Crown, are copyrighted for the year in which the work was published plus fifty years.
  • In the case of joint authorship, copyright exists for the life of the author who dies last plus fifty years.
  • Where the author is unknown, copyright exists for the first year of publication plus fifty years, or the year of the making of the work plus fifty years.
  • For posthumous works, copyright exists from the date of publication, performance or delivery in public (whichever comes first) plus fifty years.
  • Unpublished works or works that have not been delivered or performed in public have unlimited copyright protection.

5 Rights Protected

Rights are actions that only the copyright holder is permitted to undertake or authorize. Individuals or organizations that exercise these rights without holding copyright or without proper authorization are violating copyright and may be subject to a number of “remedies,” which can include monetary compensation to the copyright holder or stopping the violating act. Rights fall under 3 broad categories: economic rights, neighbouring rights, and moral rights. Economic rights will likely have greater impact on your museum than either neighbouring or moral rights, but all have been summarized in this document. They serve as brief descriptions only.

Please refer to the Canadian Copyright Act for a complete description and lists of rights included in each category.

5.1 Economic Rights

Economic rights are the exclusive rights of the copyright holder, and only they can exercise these rights or authorize others to do so. There are many rights within this category that could potentially affect your museum including:

5.1.1The Right of Reproduction

Protects the copyright owner’s exclusive rights to produce or reproduce the work in any material form. “Reproduce” refers to the reproduction of the same work in the same format or in another format. Digital reproductions are considered reproductions for the purpose of copyright law.

5.1.2 Right of Publication

Protects the copyright owner’s exclusive rights to publish a work and to make that work available to the public. Once the creator has authorized their work’s publication, they have no rights on subsequent sales (i.e. resale or rental).

5.1.3 Right of Adaptation

Protects the copyright owner’s exclusive right to adapt, or authorize the adaptation of, a work. Examples of adaptation would include converting a play into a film, or it could include using a photograph in a calendar or brochure

5.1.4Right of Translation

Protects the copyright owner’s exclusive right to translate, or authorize the translation of, a work. An example would be translating an article from English to French.

5.1.5Exhibition Rights in Artistic Works

Protects the copyright owner’s exclusive right to present an artistic work, such as paintings or sculptures, at in a public exhibition for a purpose other than sale or hire. This right protects artistic work created after June 7, 1988, and does not include maps, charts, or plans.

5.2Neighbouring Rights

Neighbouring rights are distinct from copyright, in that they are rights granted to users of copyrighted works. These rights protect the rights of performers, such as actors and singers, record producers, and broadcasters. For example, copyright protects the script writer, while neighbouring rights would protect the performers acting out the script.

5.3 Moral Rights

Moral rights are separate from copyright, as they protect the reputation of a creator. Moral rights are maintained by the creator even if they have assigned copyright to another individual or institution. Theserights apply even in employment situations.

5.3.1 Right of Paternity

The creator has the right to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous. This right remains in place so long as the economic rights remain in their name, and is used in relation to the uses covered by economic rights.

5.3.2 Right of Integrity

Without the creator’s permission, the work may not be used in association with a product, service, cause, or institution and may not be distorted, mutilated, or otherwise modified in a way that is prejudicial to the honour or reputation of the creator.

6 Infringement

A person or institution that violates any of the bundle or rights protected by copyright described within the Canadian Copyright Act is said to be infringing copyright. Infringement can include: bootlegging, counterfeiting, piracy, plagiarism, and moral rights violation.

6.1 Bootlegging

Bootlegging is the illegal recording of a live event, and is a direct infringement of Performer’s Performance Right.

6.2 Counterfeiting

Counterfeiting is illegal duplication of a creator’s work and subsequently deceiving or defrauding the public by passing the duplication off as the original work. Counterfeiting is a violation of the Right of Reproduction.

6.2Piracy

Piracy is the illegal duplication of a creator’s work, and is a direct infringement on the copyright holder’s Right of Reproduction.

6.3 Plagiarism

Plagiarism is the act of using part of, or all of, another person’s work and passing it off as your own. By doing so, you may be violating the creator’s Right of Reproduction, by reproducing the work, and Right of Integrity, by associating the creator’s name with your work.

6.3Moral Rights Violation

In cases where a duplication has been made of an original work, the copy may be of an inferior quality and would be considered an infringement of the creator’s Moral Rights.

7 Exemptions

In certain situations, museums are exempted from copyright infringement. For example, according to the Canadian Copyright Act, “fair dealing for the purpose of research or private study does not infringe copyright” and that “it is not an infringement of copyright for a library, archive or museum or a person acting under the authority of a library, archive or museum to make, for the maintenance or management of its permanent collection or the permanent collection of another library, archive or museum, a copy of a work or other subject-matter, whether published or unpublished, in its permanent collection

(a)if the original is rare or unpublished and is

(i)deteriorating, damaged or lost, or

(ii)at risk of deterioration or becoming damaged or lost;

(b)for the purposes of on-site consultation if the original cannot be viewed, handled or listened to because of its condition or because of the atmospheric conditions in which it must be kept;

(c)in an alternative format if the original is currently in an obsolete format or the technology required to use the original is unavailable;

(d)for the purposes of internal record-keeping and cataloguing;

(e)for insurance purposes or police investigations; or

(f)if necessary for restoration.”

When completing tasks that may be fall under copyright infringement, it is important to refer to the Canadian Copyright Act. The Act provides detailed descriptions of what acts completed by educational institutions, libraries, archives, and museums are permissible under Canadian copyright law.

8 Remedies for the Violation of Copyright

When copyright infringement occurs, the copyright holder is entitled to remedies. These remedies can range from the prevention of further copyright infringement, to seeking compensation for the violation. Violations can be settled through civil remedies, such as an injunction, damages, accounts of profits, and the return of illegal copies and through criminal sanctions.

The Canadian Copyright Policy has detailed explanations of the remedy processes, and should be reviewed for further information.

9 Enforcing Copyright on the Internet

Preventing illegal access and use of your material is an important component of making copyrighted material available for access on the internet. This involves preventing the illegal reproduction, distribution, and manipulation of any protected content your museum allows on the internet. There is a growing number of software and hardware that are being used to protect content, including encryption, watermarking, and tagging. There are a number of excellent resources available online which describe how museums are using these methods to protect their content online, and should be reviewed for further information on the topic.

10Further Reading

Canadian Copyright Act, Copyright Act R.S., c. C-30. s. 1. aws-lois.justice.gc.ca/eng/acts/C-42/

Green, David. A Museum’s Guide to Digital Rights Management.

Harris, Lesley Ellen. Canadian Copyright Law 3rd Edition. Canada: McGraw-Hill Ryerson Limited, 2001.

National Initiative for a Networked Cultural Heritage. The NINCH Guide to Good Practice in the Digital Representation and Management of Cultural Heritage Materials.

Roosen-Runge, Peter H. and Anna P. Roosen-Runge. The Virtual Display Case: Making Museum Image Assets Safely Visible 3rd Edition. Canada: Her Majesty the Queen in Right of Canada, 2003.