Copyright 101 -- A Primer for Genealogists

With the explosive growth of the World Wide Web^{^[1]} in recent years, it has become possible for virtually anyone to publish anything at little or no cost. This has, in turn, led to much concern about the state of copyright law and the rights of the person or organization that originally created the material. The purpose of this article, therefore, is to discuss some of the provisions of Canadian copyright law and why they are important to genealogists.

It is necessary, first of all, to look very briefly at how the Canadian legal system works. There are essentially two sources of law in Canada: the law as established by Parliament and the various Provincial Legislatures (statute law) and judge-made law (common law).

Most people are familiar with Statute Law. This is to be found in the annual volumes from Parliament and the Legislature. The statute that is most relevant to our discussion is the Federal Copyright Act^{^[2]}. Statutes are sometimes written in broad, inclusive language because the legislators cannot anticipate every situation that may possibly arise after the Act is originally passed. Therefore it is up to the judges to interpret the Act and apply it to specific situations as cases come before them.

The common law is found in the body of judicial decisions rendered over time that together interpret and explain the statute law. These decisions can be found in the various series of law reports^{^[3]}. It does not replace the statute law but rather supplements and augments it.

The Copyright Act is fairly clear as to the existence of creator's rights. Copyright is vested in the author of an original work the very moment it is created. This right continues throughout the life of the author and for an additional fifty years after his or her death^{^[4]}. The Act also clearly states that infringement occurs when the infringer does "anything that by this Act only the owner of the copyright has the right to do"^{^[5]}.

While the Act does not explicitly mention the Internet or other electronic media, it prohibits the distribution "to such an extent as to affect prejudicially the owner of the copyright"^{^[6]}. The Act also defines "publication" to include "the issue of copies of the work to the public"^{^[7]}. Therefore, I would argue that the Copyright Act does indeed cover material made available via the Internet. The Courts have held that ignorance of the fact that the material is protected by copyright is not a good defence, especially where the work contained a printed notice to that effect^{^[8]}. Likewise, it has been determined that simply citing or acknowledging the source of the material that has been copied is not sufficient to avoid infringing the Act^{^[9]}.

The sections of the Copyright Act that is most relevant to genealogists and other researchers are those concerning the "fair use" provisions^{^[10]}. The Act simply states that "any fair dealing with any work for the purposes of private study or research" is permissible and therefore does not constitute an infringement of copyright^{^[11]}.

This emphasis on personal use of the material copied is reinforced by recent amendments specifically concerning libraries and archives. Copies may be made for researchers only on condition that

the person for whom the copy will be made has satisfied the library, archive, or museum that the person will not use the copy for a purpose other than research or private study^{^[12]}.

Genealogists should bear in mind that these restrictions on publishing or distributing material apply equally to unpublished (i.e. manuscript) material^{^[13]}.

Unfortunately, nowhere does the Copyright Act explicitly state what constitutes "fair use". Other than the several references to personal use and private study, it leaves the phrase undefined. I have only been able to locate one Canadian decision where the Court attempted to deal with this issue:

Although the proportion of cribbing from the plaintiff's work to the total of the [defendant's] work was quantitatively small, the qualitative aspect indicated to me that it was more than "fair dealing" and it constituted an appropriation of the skill and time and talent of the plaintiff^{^[14]}.

Therefore it appears that the courts will look at the significance or importance of the section copied rather than the size thereof. The material copied may only constitute a small part of the larger work but the Court will consider how it relates to the work as a whole when determining if there has been an infringement of the copyright^{^[15]}.

So, what does this all mean for genealogists and other researchers? The safest course is not to publish or distribute material that is still within copyright unless the copyright holder has given express, written permission to do so. It may seem like a courteous and helpful idea to make source material available via the World Wide Web or to publish extracts from other works as part of one's family history but to do so is clearly against the law. Electronic or not, the same rules still apply. While it may not seem that way, copyright infringement is simply another form of theft!

^{^[1]} The Web is certainly only one part of the Internet but it is probably the best known to the general public.

^{^[2]} R.S.C. 1985, c. C-42 as amended. Note that the Copyright Act has been amended or changed just about every year since 1985 and the Revised Statutes are no longer current and should not be relied upon!

^{^[3]} For a detailed discussion of the use of law reports see my article “Published Legal Sources for Genealogists,” in The Nova Scotia Genealogist XII/2 (Summer, 1994) pp. 82-4.

^{^[4]} s. 6.; in the case of joint authors, the rights continue for fifty years after the death of the last one.

^{^[5]} s. 27(1), emphasis added.

See also Rotisserie St. Hubert Ltee. v. Syndicat des travailleurs(euses) de la Rotisserie St. Hubert de Drummondville (1986) 12 C.I.P.R. 89 which held that "The infringing work does not have to be in commercial competition with the original work. It is sufficient that the infringer does anything that only the owner of the copyright has the right to do."

^{^[6]} s. 27(2)(b).

^{^[7]} s. 4(1).

^{^[8]} Simon & Schuster Ltd. v. Coles Book Stores, Ltd. (1975) 61 D.L.R. (3d) 590. Most publications now contain an explicit notice of copyright.

^{^[9]} Breen v. Hancock House Publishers (1985) 6 C.I.P.R. 129.

^{^[10]} This is the commonly used term; the legislation uses the expression "fair dealing" instead.

^{^[11]} S.C. 1997 c. 24 s. 29.

^{^[12]} S.C. 1997. c. 24 s. 30.2(4)(a)

^{^[13]} S.C. 1997 c. 24 s. 30.21(5)

^{^[14]} Breen v. Hancock House Publishers (1985) 6 C.I.P.R. 129 (F.C., T.D.).

^{^[15]} See also Prism Hospital Software, Inc. v. Hospital Medical Records Institute (1994) 97 B.C.L.R. (2d) 201, especially at pp. 342-3 for a more technical discussion of this point. The B.C. Supreme Court came to the same conclusion as the Federal Court of Canada.