Virtual Museum of Canada (VMC) Community Memories Program

Copyright, Privacy Law, and Risk Assessment when Using Copyright-Protected Materials and Photographs of Individuals and Groups

March 2005

© 2005 Leslie Ellen Harris, contact@copyrightlaws.com

Document for the Community Memories Program on: Copyright, Privacy Law, and Risk Assessment When Using Copyright-Protected Materials and Photographs of Individuals and Groups.

This document is divided into two parts. The first part is a primer on copyright law and privacy law, and a risk assessment analysis of using certain works in Communities Memories exhibits. The second part sets out various scenarios in the form of questions, providing practical answers to issues in your museum.

This document is not a substitute for legal advice. Proper legal advice should be obtained where necessary.

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PRIMER ON CANADIAN COPYRIGHT LAW

What is Copyright?

Copyright is the right of authors and owners to control certain uses of their works. The owner of copyright has the right to reproduce the work, publish it, adapt it, perform it in public, exhibit it in public, and broadcast it. The Canadian Copyright Act is http://laws.justice.gc.ca/en/C-42/.

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What is Protected by Copyright Law

Copyright protects a variety of literary, artistic and musical works as well as sound recordings, videos and films. This includes brochures, newsletters, graphical logos, manuscripts, books, posters, images and photographs. The same works are protected in print or analogue formats as those on digital media like Community Memories online exhibits or CD-ROMS, DVDs and Web sites. Titles or names of works or products and brand names are not protected by copyright.

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Who Owns Copyright?

The author of a work is the first owner of its copyright. 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, like the writer of a book.

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Does a Museum Own the Copyright in Works in its Collection?

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 with that museum, 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.

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Who Owns a Photograph or a Portrait?

A photograph is owned by the person who owns the initial negative or other plate at the time when that negative or other plate was made, and if none, the author is the owner of the initial photograph at the time when that photograph was made.

A commissioned photograph or portrait belongs to the person who commissioned it, unless there is an agreement to the contrary.

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What are Moral Rights?

Moral rights protect the honour and reputation of an author (and not owner) of a copyright work. There are three types of moral rights in Canadian law. The first is the right of paternity or the right of an author to have her name on her work or to remain anonymous or to use a pseudonym. The second type is the right of integrity which is the right of an author to prevent modification to her work that may be harmful to her reputation. For example, cropping or manipulating a photograph or certain editing of a text document for use in a Community Memories exhibit, may be harmful to the reputation of the photographer or writer. Thirdly, an author has the right to prevent the use of her work in association with a product, service, cause or institution, that may be harmful to her reputation as a creator.

Moral rights last for the same duration of copyright. However, unlike copyright rights, moral rights may not be licensed or assigned to others (except in a will). However, they may be waived, that is, the author may agree not to assert such rights. When acquiring copyright-protected works via assignment or donation, it is always easiest for your museum if the moral rights are waived in writing.

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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-50 rule. For example, if a writer died on April 26, 1970, copyright in his books expires on December 31, 2020. Once copyright has expired, the work is in the public domain and may be used freely without obtaining permission. 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.

Note that in the U.S. and in European countries, copyright expires 70 years after the death of an author. However, you apply the duration of the country where the work is being used. So, if you are using a work in Canada, apply the life-plus-50 rule. If using the work for distribution outside of Canada including Community Memories online use, apply the life-plus-70 rule.

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How do you Obtain Permission to Use a Copyright-Protected 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. 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 at: http://strategis.ic.gc.ca/cipo/copyrights/displaySearch.do?language=eng. Since copyright registration is not mandatory in Canada, not all copyright owners will be listed there.

Some authors belong to copyright collectives. These collectives represent a broad range of authors and may be able to provide you with the rights for that author's works. There are several collectives to approach, depending on the nature of the works and rights you need to clear. A list is at: http://www.cb-cda.gc.ca/societies-societes/index-e.html.

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When Can You Copy Without Permission?

If you own a copyright work, you may use it in any manner whatsoever. However, physical ownership of a work does not mean you own the copyright in it. If the work has been donated or created for your museum, ensure that there is a transfer of copyright to your museum. Also, if copyright has expired in the work, you may use it in any manner whatsoever. Further, if an employee has created the work as part of his work duties, then the museum/employer owns the copyright in that work.

The Canadian Copyright Act has some 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 copy in specific circumstances, primarily relating to preservation of materials, as opposed to exhibition of these materials. For example, a LAM may make a copy of a copyright-protected work for the maintenance or management of its permanent collection.[1]

The U.S. concept of fair use does not exist in Canada. However, Canadian copyright laws allow fair dealing with a work for the purposes of criticism, review, newspaper summary, private study, and research. Generally, this is interpreted as using small portions of a work such as a quote from an article, though a recent Canadian Supreme Court case has suggested that fair dealing may allow larger amounts of works and even entire copyright-protected works without obtaining permission, under certain circumstances, especially where the institution has a written copyright policy.

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.

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PRIVACY LAWS AND PHOTOGRAPHS

Generally, permission or what is called a "model release" is required from persons in a photograph. This includes permission from a parent or guardian for a minor in a photograph. It is the photographer who usually obtains this permission. However, if the permission has not been obtained by the photographer, a museum or licensee of the photograph would then have to obtain that permission, if possible. If permission cannot be obtained, there is a risk that the person(s) in the photograph will take legal action against the museum and licensee using the photograph. The risk of such an action is higher if the photograph is being used in a "public" manner such as on a Web site, or in any commercial manner. The risk is much lower if the person is incidental to the subject of the photograph, there is a group of people (the larger the group the lower the risk), or the person is engaged in a public activity such as a political rally. You do not need permission to use photographs of public figures.

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COPYRIGHT RISK ASSESSMENT

What is Copyright Risk Assessment?

Locating a copyright owner can be a daunting and often impossible task. You want to reproduce a certain print work, and despite all your online searches, telephone calls, e-mails, faxes and snail mails, you are at a dead end. Should you use the work anyhow? To answer this question, you need to look at all of the relevant factors and see what makes sense for your museum.

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Risks Involved in Unauthorized Use of a Work

There are several risks you may face. First, you may face paying a copyright fee after using the copyright-protected work, or in the worst scenario, a law suit. Second, you may face public embarrassment by the fact that you used copyright-protected materials in which you did not have the permission. This may be damaging especially for a publicly or privately funded museum as you may risk alienating your funders. Third, you may need to stop using the non-cleared work(s) which may encompass such things as removing an image from your Community Memories exhibit CD or online versions, or re-printing a print publication which includes the work(s).

To assess your risk of using non-cleared materials, consider the following:

  • The origin of the work(s). Is the author well known? This may be riskier. Does the author or copyright holder have a reputation for strictly guarding uses of its works? (E.g., Disney and Bob Dylan are examples of copyright owners who have this reputation.) Is the copyright owner likely to pursue legal action or to negotiate a copyright fee? Is the copyright owner likely to proceed through a trial if he commences an action?
  • Who will have access to the work(s) and where will the work be accessed? If it is being reproduced on the Web, then it is accessible to a huge number of people around the world.
  • Analyze your budget for after-the-fact royalty payments, settlements out of court, court-related fees, and infringement-related legal advice.
  • What are the "political" consequences of using materials without permission? Would bad publicity mean less public or private funding? What would be the message to the public about respect for the law?
  • Do you have insurance coverage for copyright infringement? Would this use be covered? How would this affect your coverage and premiums?
  • What are the "emotional" costs of a claim against you for copyright infringement? How would this affect your employees, volunteers and governing body?
  • Weigh the time and inconvenience of dealing with an infringement claim with the advantages of using unauthorized materials.

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Consider the Alternatives to Unauthorized Use

Before using non-cleared work, consider all possible alternatives to using the work without permission. Are there similar works you could use with permission? Are there works in the public domain? Could an employee create a new work?

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SPECIFIC SCENARIOS / Qs&As

Below are some specific scenarios that have arisen in museums. The discussion of the scenarios apply to the information provided in this document.

Our museum is digitizing photographs and manuscripts for use on our Community Memories exhibit online. We own the copyright in the manuscripts but not in the photographs. Is it necessary to obtain permission when digitizing these works?

It is not necessary to obtain permission to digitize works in which you own the copyright (like the manuscripts.) Owning copyright means that you may use the works as you wish. However, you may need to consider the moral rights. Have they been waived, or must you be careful in ensuring the reputation of the author of those works is not harmed when you digitize the works. If you do not own the copyright in the works (as is the case with the photographs), you must obtain permission to digitize them unless they are in the public domain.

Is it necessary to obtain permission to use class photos?

The answer to this question involves two issues. First, the issue of the privacy of the persons in the photograph. The students in the class have agreed to be included in the photograph. However, permission is for specific use of the photograph and not all uses. Thus, if the photograph is to be used in alternative manners, permission should be obtained, if the persons in the photograph are still living. If permission is impossible to obtain, do a risk analysis as provided in the Privacy Laws section of this document.

Second, who owns the copyright in the photograph? Is it the photographer or the commissioner of the photograph? If the photograph is still protected by copyright, you must obtain permission from the copyright owner prior to using it in any copyright manner. If copyright has expired, then you may freely use the photograph.

We are unable to locate the copyright owner of a work. Is it okay to use the work on our Community Memories exhibit online and in print documents and include a statement that we attempted but were unable to locate the copyright owner of the work?

Including such a statement is not a substitute to locating a copyright owner and obtaining permission from him. One way to obtain permission from an unlocatable copyright owner is to apply to the Canadian Copyright Board for an unlocatable copyright owner licence. Licenses may be granted for a five year period, for the use of published copyright-protected works, in Canada. However, before a license is granted, you must prove to the Copyright Board that every reasonable effort has been taken to locate the copyright holder. Easy to follow information is on the Board's Web site at: http://www.cb-cda.gc.ca/unlocatable-introuvables/index-e.html.

An outdoors association has asked our museum to provide them with an exclusive license to 10 of our Community Memories exhibit photographs for commercial use for $20 per image plus a percentage of the sales. What issues should we consider in replying to this request?

First, you should ensure that you own the copyright in the photographs and not merely the "physical" photographs themselves. If you do own the photographs, you have the right to license them to the association. However, do you want an exclusive license whereby you may not license the same images to others, nor even use them yourself? Is this within your financial interest and the mandate of your museum? Or would it make more sense to provide a non-exclusive license? Either way, consider the length of time of this license. For instance, is 10 years suitable, or perhaps for the duration of the copyright in the photographs? Do you have a waiver of moral rights or do you want to ensure that it is the association's responsibility to ensure there is no violation of moral rights of the photographers? Is the fee appropriate? Make sure any percentage is based upon net sales to ensure the maximum return. Will your museum's name be used in association with the photographs and what is your preference? Also, are there any people in the photographs and will it be the responsibility of the association to ensure privacy laws are complied with?

1. 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.