COPYRIGHT REGULATIONS

Exception for Educational Institutions, Libraries, Archives and Museums Regulations

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REGULATIONS
Copyright Act

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P.C. 1999-1351 28 July, 1999

His Excellency the Governor General in Council, on the recommendation of the Minister of Industry, pursuant to subsections 30.2(6)a , 30.21(4)a and (6)a and 30.3(5)a of the Copyright Act, hereby makes the annexed Exceptions for Educational Institutions, Libraries, Archives and Museums Regulations.

EXCEPTIONS FOR EDUCATIONAL INSTITUTIONS, LIBRARIES, ARCHIVES AND MUSEUMS REGULATIONS

1. (1) In these Regulations, "Act" means the Copyright Act.

(2) In these Regulations, a reference to a copy of a work is a reference to a copy of all or any substantial part of a work.

2. For the purpose of subsection 30.2(6) of the Act, "newspaper or periodical" means a newspaper or a periodical, other than a scholarly, scientific or technical periodical, that was published more than one year before the copy is made.

3. In respect of activities undertaken by a library, an archive or a museum under subsection 30.2(1) of the Act, section 4 applies only to the reproduction of works.

4. (1) Subject to subsection (2), a library, an archive or a museum, or a person acting under the authority of one, shall record the following information with respect to a copy of a work that is made under section 30.2 of the Act:

(a) the name of the library, archive or museum making the copy;

(b) if the request for a copy is made by a library, archive or museum on behalf of a person who is a patron of the library, archive or museum, the name of the library, archive or museum making the request;

(c) the date of the request; and

(d) information that is sufficient to identify the work, such as

(i) the title,

(ii) the International Standard Book Number,

(iii) the International Standard Serial Number,

(iv) the name of the newspaper, the periodical or the scholarly, scientific or technical periodical in which the work is found, if the work was published in a newspaper, a periodical or a scholarly, scientific or technical periodical,

(v) the date or volume and number of the newspaper or periodical, if the work was published in a newspaper or periodical,

(vi) the date or volume and number of the scholarly, scientific or technical periodical, if the work was published in a scholarly, scientific or technical periodical, and

(vii) the numbers of the copied pages.

(2) A library, an archive or a museum, or a person acting under the authority of one, does not have to record the information referred to in subsection (1) if the copy of the work is made under subsection 30.2(1) of the Act after December 31, 2003.

(3) A library, an archive or a museum, or a person acting under the authority of one, shall keep the information referred to in subsection (1)

(a) by retaining the copy request form; or

(b) in any other manner that is capable of reproducing the information in intelligible written form within a reasonable time.

(4) A library, an archive or a museum, or a person acting under the authority of one, shall keep the information referred to in subsection (1) with respect to copies made of a work for at least three years.

(5) A library, an archive or a museum, or a person acting under the authority of one, shall make the information referred to in subsection (1), with respect to copies made of a work, available once a year to one of the following persons, on request made by the person in accordance with subsection (7):

(a) the owner of copyright in the work;

(b) the representative of the owner of copyright in the work; or

(c) a collective society that is authorized by the owner of copyright in the work to grant licences on their behalf.

(6) A library, an archive or a museum, or a person acting under the authority of one, shall make the information referred to in subsection (1) available to the person making the request, within 28 days after the receipt of the request or any longer period that may be agreed to by both of them.

(7) A request referred to in subsection (5) must be made in writing, indicate the name of the author of the work and the title of the work, and be signed by the person making the request and include a statement by that person indicating that the request is made under paragraph (5)(a), (b) or (c).

5. (1) An archive, or a person acting under the authority of one, shall record the following information with respect to a copy of a work that is made under subsection 30.21(5) of the Act:

(a) the name of the archive making the copy;

(b) the name of the person requesting the copy or, if the request for a copy is made by another archive on behalf of a person who is a patron of the other archive, the name of the patron and the archive making the request;

(c) the date of the request; and

(d) information that is sufficient to identify the work copied.

(2) An archive, or a person acting under the authority of one, shall keep the information referred to in subsection (1)

(a) in a record maintained by the archive of the names of all individuals who have had access to the work in question;

(b) by retaining the copy request form; or

(c) in any other manner that is capable of reproducing the information in intelligible written form within a reasonable time.

(3) An archive, or a person acting under the authority of one, shall keep the information referred to in subsection (1) with respect to copies made of a work for at least three years.

(4) An archive, or a person acting under the authority of one, shall make the information referred to in subsection (1), with respect to copies made of a work, available, on request in writing, to

(a) the author of the work;

(b) the owner of copyright in the work; or

(c) the representative of the author or owner of copyright.

(5) An archive, or a person acting under the authority of one, shall inform a person requesting a copy of a work under subsection 30.21(5) of the Act, in writing, at the time of the request, or if the person has registered as a patron of the archive, at the time of registration, of the fact that the archive will make the information referred to in subsection (1) available, on request, to the persons referred to in paragraphs (4)(a) to (c).

6. (1) If a person requests a copy of a work from an archive under section 30.21 of the Act and the person has registered as a patron of the archive, the archive shall inform the patron in writing at the time of registration

(a) that any copy is to be used solely for the purpose of research or private study; and

(b) that any use of a copy for a purpose other than research or private study may require the authorization of the copyright owner of the work in question.

(2) If a person requests a copy of a work from an archive under section 30.21 of the Act and the person has not registered as a patron of the archive, the archive shall inform the person in writing at the time of the request

(a) that any copy is to be used solely for the purpose of research or private study; and

(b) that any use of a copy for a purpose other than research or private study may require the authorization of the copyright owner of the work in question.

7. A library, archive or museum, or a person acting under the authority of one, that makes a copy of a work under section 30.2 or 30.21 of the Act shall inform the person requesting the copy, by means of text printed on the copy or a stamp applied to the copy, if the copy is in printed format, or by other appropriate means, if the copy is made in another format,

(a) that the copy is to be used solely for the purpose of research or private study; and

(b) that any use of the copy for a purpose other than research or private study may require the authorization of the copyright owner of the work in question.

8. An educational institution, a library, an archive or a museum in respect of which subsection 30.3(2), (3) or (4) of the Act appplies shall ensure that a notice that contains at least the following information is affixed to, or within the immediate vicinity of, every photocopier in a place and manner that is readily visible and legible to persons using the photocopier:

Description

Bill C-32, An Act to amend the Copyright Act, received Royal Assent on April 25, 1997. Among the measures introduced in this bill were exceptions to allow the copying of material by non-profit educational institutions, libraries, archives, and museums.

Under the Act a person may engage in "fair dealing" (normally copying) for purposes of research, private study, criticism or review of copyrighted material without infringing copyright. The Copyright Act allows non-profit libraries, archives, and museums, or persons acting under their authority to do these same things on behalf of a person engaged in such activities. In addition, non-profit libraries, archives and museums, or persons acting under their authority, may make a single copy of certain articles appearing in a newspaper or periodical, if they are satisfied that the copy is to be used by the person for purposes of research or private study. The Act provides that the above exceptions also apply to interlibrary loans. However, where the requested copy is transmitted electronically between two institutions, the Act specifies that the copy given to the patron must not be in digital form.

The Regulations prescribe the information to be recorded by such institutions concerning copies of copyrighted material they have made for patrons under the exceptions. The Regulations further provide that the information must be retained by the institutions for three years, and set conditions for access to the records. However, where copying is done by an institution at its premises for patrons engaged in "fair dealing", records need to be kept only for copies made prior to January 1, 2004. This "sunset" clause will provide libraries, archives, museums and copyright owners the opportunity to assess, over a set period of time, the costs and benefits of this particular record keeping requirement. Prior to the "sunset" date, the Departments of Industry and Canadian Heritage will review the operation of this provision with affected stakeholders.

The Regulations give effect to provisions in the Act which allow a non-profit archive to make a copy of an unpublished work deposited in the archive after these provisions come into effect, provided that the copyright owner has not prohibited copying and the archive is satisfied that the copy will be used for purposes of research or private study. In the event that a copyright owner cannot be located, and the work was deposited in the archive prior to the coming into force of the exception, the Regulations set out what records must be kept by the archive. These records are open to inspection by the author of the work, the copyright owner of the work, or the representative of the author or copyright owner.

Under the Act, non-profit educational institutions, libraries, archives and museums are not liable with respect to independent uses of photocopiers on their premises if they have an agreement with a copyright collective or if a copyright collective has filed a tariff with the Copyright Board or the Copyright Board has approved such a tariff, provided that a sign containing information set out in the Regulations has been posted in the immediate vicinity of the machine. The notice is to warn against copyright infringement. (Copyright collectives are organizations which collect royalties on behalf of copyright owners.)

Alternatives

Three alternatives were considered with respect to the scope of record keeping: record keeping Regulations only where required under the Act, recording keeping for all types of uses allowed for under the exceptions, and record keeping for selected uses permitted under the exceptions. The third option was chosen. It was felt that only in the case of certain uses would record keeping assist copyright owners in detecting possible infringements.

Record keeping was not required under the section of the Act dealing with the "Management and maintenance of collections" because it was felt that these activities were of a routine nature and the possibility of infringement was minimal. Record keeping was required elsewhere because it was felt that this could deter or provide evidence of possibly infringing activities. The Regulation prescribes the nature of the notice to be displayed near photocopy machines because this would provide certainty and avoid disputes over the nature or adequacy of the notice.

There is no overlap or duplication. The federal government has exclusive jurisdiction in this matter.

Benefits and Costs

These Regulations may help copyright owners detect infringement, i.e., copying which exceeds or is outside of the statutory exception, and will protect the institutions against liability for unauthorized copying done on photocopying machines on their premises.

The Regulations will impose an administrative burden on the institutions. However, the cost to institutions will depend upon how many copies are made under the exceptions, the number of requests from copyright owners for access to the records, and the nature of the institutions' record keeping processes.

There will be no additional costs to the government due to these Regulations.

Consultation

As a result of consultations undertaken by the Departments of Industry and Canadian Heritage, the following were provided with informal drafts of these Regulations:

The Writers' Union of Canada (TWUC), Periodical Writers Association of Canada (PWAC), Playwrights Union of Canada, League of Canadian Poets, CANCOPY, COPIBEQ, Association nationale des éditeurs de livres (ANEL), Canadian Publishers' Council, Association of Canadian Publishers, Canadian Association of University Teachers (CAUT), National Library of Canada (NLC), Canadian Library Association (CLA), Canadian Association of Research Libraries (CARL), Association of Universities and Colleges of Canada (AUCC), Association pour l'avancement des sciences et des techniques de la documentation (ASTED), Archival Community Copyright Committee (ACCC), National Archives of Canada (NAC), Canadian Museums Association (CMA), Canadian Newspaper Association.

Groups representing creators and copyright owners supported record keeping for all types of copying done on behalf of patrons of libraries, archives and museums. Representatives of libraries felt that records should be kept only with respect to interlibrary loans. In particular, representatives of libraries were opposed to keeping records with respect to copies made for fair dealing purposes on behalf of patrons on the same premises.

While views remained divergent on certain issues, attempts were made to address in the Regulations many of the concerns raised in comments received by the two departments.

The Regulations and accompanying Regulatory Impact Analysis Statement were prepublished in the January 30, 1999, issue of the Canada Gazette, Part I. Interested parties were invited to make any representations concerning the Regulations within 45 days of the date of prepublication.

Comments were received from the Canadian Library Association, Canadian Association of University Teachers, Canadian Association of Research Libraries, Association pour l'avancement des sciences et des techniques de la documentation, Association of Universities and Colleges of Canada, Association of Canadian Community Colleges, The Writers' Union of Canada, Periodical Writers Association of Canada, Playwrights Union of Canada, League of Canadian Poets, Canadian Copyright Licensing Agency, The Law Society of British Columbia, Law Society of Upper Canada, Canadian Association of Law Libraries, The Law Society of Saskatchewan, British Columbia Courthouse Library Society, Association of Canadian Publishers, Canadian Publishers' Council, Ontario Library Association, Forum of Public Libraries of Ottawa-Carleton, Ottawa Public Library, McGill Medical and Health Libraries Association, Royal Columbian Hospital Library Simon Fraser Health Region.

Minor changes were made to the Regulations in order to clarify the intention of the Government or to ensure consistency in language.

Records kept under section 30.2 of the Act: in response to concerns, subsection 4(5) was redrafted to clarify the Government's intention to prevent the making of multiple requests to the same institution in the course of a calendar year, in respect to a particular work. This means that a right holder may not make more than one request with respect to the copying of a work in a single calendar year.

In this same subsection, paragraphs (b) and (c) were reworded to ensure consistency with the language contained in paragraph (a).

These modifications do not in any way change the policy formulated by Industry Canada and Canadian Heritage.

Notice: Comments were also received regarding section 8, seeking clarification that staff members would not be required to give an interpretation of the law as to what constitutes authorized copying. No modifications were made to the Regulations as it is not expected that this section of the Regulations would result in staff members having to provide interpretations of the law.

Other comments were received from stakeholders, but after careful consideration, they did not result in changes to the Regulations, for the following reasons:

- they exceeded the regulatory power provided for in the Copyright Act;

- they were contrary to the policy developed by Industry Canada and Canadian Heritage, in consultation with stakeholders; and,

- they were issues of terminology not required for a better understanding of the Regulations.

Compliance and Enforcement

Compliance and enforcement mechanisms are not required. Failure to keep the records required by the Regulations would constitute copyright infringement.