Canada’s Copyright Law- Or Lets All Tip Toe Through The Mine Field

Monday last was the chat session for my Pro Gen group. One of the discussions centered around how copyright affected genealogists.  As the lone Canadian in the group I could see that there were some subtle differences in the Canadian Copyright Act and the U.S. one. Also, that people can get pretty worked up about it.

The Canadian Copyright Act is available online through the Canadian Ministry of Justice. As well there are two blogs one by David Canton, and one by Michael Geist that deal with the Act, and the changes that are coming. Both are legal beagles so you had better have your lawyer-speak up and running.

In Canada the Copyright Law does not protect ideas but how those ideas are expressed. For genealogists that would be for anything that is written - articles, books, or blogs. So for the genealogist, and I might add the historian, what can I print and what can I not print. How do I cover my ass?

For published material Section 6 provides that works are protected for 50 years after the death of the author. Section 12 provides that government documents (Federal, Provincial, Municipal) are protected for 50 years from the end of the calendar year in which the document was created. So the 1916 Western Canada Census has become available; but something other than copyright is holding up the 1921 Census.

Section 10 states that photos taken by an individual are copyright according to section 6 of above. If the photo was taken by a corporation ( ie. newspaper) then the photo is copyright for 50 years from the date in which the photo was taken. The choice of who gains the copyright comes down to who it is that owns the camera or digital camera.

As I read these sections of the Copyright Act most historians would be in violation of the Act. However, the loophole is “fair dealing”. Fair Dealing in Canada as opposed to  “Fair Use” in the U.S. apparently is not as flexible in its use. Common to the Commonwealth countries fair dealing  as I understand it has its basis in common law. This would seem to be the loop hole through which historians work. Section 29 states that “Fair Dealing for the purpose of research or private study does not infringe copyright”. (here I should have a footnote so have a peak at the act above). Section 29.1 goes on to state that you must give the source (footnote), and the author ( all that goes into a footnote, author, title, year published, page reference).

If you are writing for research or educational purposes you are within the copyright rules; however, if you are being paid then you have to be really careful of you know what! The Canadian judiciary seems to frown upon “the motive of gain”.

Canadian bloggers be aware of the upcoming changes in the Copyright Act they may well change everything.