by Peter Sim, May 1995
 

Introduction
Last month I reviewed some of the basics of Canadian copyright law. This article will discuss some of the changes that may be necessary to adapt the law to the new world of digital media.

The federal government's Information Highway Advisory Council is currently studying these issues. It commissioned a research study from NGL Nordicity Group Ltd. and the Council's Copyright Subcommittee has produced a preliminary "Report on Copyright and the Information Highway."

 Information in a digital format, whether it be a computer database, a compact disk, or a multi-media CD-ROM, creates problems for copyright law in both theory and practice.

 The greatest practical problem is the ease with which digital works can be reproduced. Hardware and software available to ordinary consumers makes it possible to produce perfect copies of digital works and transmit them anywhere in the world. This problem is compounded by the fact that digital works can easily be manipulated and combined with other works
 

Digital Multimedia
Canadian copyright law divides works into four basic categories: literary, artistic, musical and dramatic. Digital multimedia works span all of these categories. A CD-ROM may include text (a literary work), sound clips (musical works), images (artistic works) and movie clips (dramatic works). The computer program which ties all of the components together is also a literary work. All of these different elements are contained in the same basic material: strings of "0" and "1" recorded on a magnetic or optical disk.

 The unique nature of digital multimedia has led some multimedia producers to suggest that their works should be recognized as a new category for copyright purposes. The IHAC Subcommittee Report rejects these suggestions. The Subcommittee points out that the Copyright Act now contains a new definition of "compilation." A compilation is a work which results from the selection or arrangement of literary, dramatic, musical or artistic works or a work resulting from the selection or arrangement of data. A compilation which consists of two or more of literary, dramatic, musical or artistic works is deemed to be a compilation of the category making up the most substantial part of the compilation. The Subcommittee feels that this definition is technology neutral and should be adequate to deal with the problems posed by multimedia works.

 There are also practical problems in obtaining copyright clearances for multimedia works. Creators of multimedia products must obtain separate rights clearances for each picture, sound clip, and text element they include in their works. This is a tedious and costly process as it requires dealing with a series of different copyright collectives and individual creators. The problem is compounded by the fact that most existing copyright collectives do not have standard procedures for licensing works for use in digital multimedia.

 The Subcommittee report suggests that one way to deal with this problem would be to establish a voluntary rights clearance centre which would provide a central database where multimedia developers could locate copyright owners and negotiate licenses. This centre could be developed into an electronic marketplace in which copyright clearances could be negotiated on-line. The Subcommittee recommends that the industry itself should be responsible for developing an appropriate clearance system.
 

Moral Rights
Moral rights are another copyright concept that may create problems for multi-media publishers. Moral rights recognize that works are an extension of the creators' personality and that the way in which works are treated can have a significant impact on a creators' reputation and career.

 One moral right is the right of integrity gives creators the right to control the way in which their works are used or displayed. The right of integrity is infringed if a work is distorted, mutilated or otherwise modified or used in connection with a product, service, cause or institution in a way which prejudices the honour and reputation of the author.

 Court cases over moral rights are rare but one did occur a number of years ago in Toronto. The artist Michael Snow a work for the Eaton Centre called "Flight Stop." The work consisted of a composition of a series of figures of Canada geese. One Christmas, a store decorator thought it would be a fun idea to hang red ribbons around the necks of the geese. Mr. Snow didn't think so. He claimed that his work had been made to look ridiculous and his reputation had been prejudiced. He compared the ribbons to "dangling earrings from the Venus de Milo." A judge agreed and order the Eaton Centre to remove the ribbons.

 Digital media vastly increases the potential for altering works. Once a photograph or painting is converted to digital format it takes only a few clicks of a mouse to change colours, resize it, crop it or paste in parts of other images.

Some artists see the potential of digital manipulation as a new creative opportunity and are creating interactive digital works which invite the viewer to manipulate them. Other artists may object to digital manipulation of their work as vehemently as Mr. Snow did.

 Multimedia developers who intend to make changes to copyright works should be careful to obtain a waiver of moral rights. This can be tricky because moral rights do not follow the ownership of the copyright. Even though the copyright may have been assigned to a publisher, the moral rights remain with the creator of the work.
 

Copyright on the Information Highway
The growth of the Internet and other public access computer networks has created new problems for copyright owners. The Copyright Act gives the owner of copyright in a work the right to control the communication of a work to the public by means of telecommunications. This section was enacted in 1993 and it is already becoming dated. With today's technology the dividing line between public and private telecommunications is becoming blurred.

 The IHAC Subcommittee says that point to point e-mail between individuals, even if it includes a copyright work, is not an infringement of copyright. However, distributing a work on a bulletin board system which made works available on-demand to individual users would require the consent of the copyright owner.

 The Subcommittee also considered the liability of bulletin board operators for the unauthorized distribution of copyright works on their systems. The Report refers to a case where a Florida bulletin board operator was held liable for copyright infringement because subscribers had uploaded scans of pictures from Playboy. The Subcommittee recommends that bulletin board operators should be held liable for the distribution of copyright material on their systems only where they have knowledge of the offending material and have not acted reasonably to remove it from their systems.

It is not clear how far the Subcommittee would extend this defence. Would operators have to establish a system of inspection to look for material that might be subject to copyright or would it be sufficient to remove the material when a complaint is received?
 

Browsing and Fair Dealing
The Subcommittee also considers the question of whether "browsing" of works in electronic format is an infringement of copyright. This is an issue that could arise, for example, when a large collection of CD-ROM's is made available in a public library. Publishers of electronic works claim that browsing of works is a form of copying which cuts into their potential revenues. On the other hand, if browsing is treated as copyright infringement, it could seriously interfere with the ability of public libraries to make electronic works available.

 The Subcommittee Report recommends that browsing be considered a form of copying but that the defence of fair dealing should be expanded to permit certain forms of browsing. Currently, the defence of fair dealing permits reproduction of parts of a work for purposes of research, criticism, private study, review, or newspaper summary.

 These are only a few of the issues discussed in the Subcommittee Report. Changes in copyright law are being considered all over the world to adapt to new information technology. The underlying policy issue is the need to balance the right of creators and publishers to a reasonable return for their efforts with the right of the public to the free exchange of ideas and information.
 

 
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Prepared by:

Peter Sim                              Phone  (204) 475-5886 (o)
Barrister and Solicitor                Fax    (204) 453-8522        
137 Scott Street                       
Winnipeg, Manitoba R3L 0K9             e-mail psim@mbnet.mb.ca

Home Page: http://www.mbnet.mb.ca/~psim/index.html

                         DISCLAIMER
This article is prepared for general information only. It is not 
intended to be relied on as legal advice.


                          COPYRIGHT NOTICE
                  Copyright (c) 1995 Peter Sim
All rights reserved except the following: Users may make copies
in paper or electronic form for distribution, without charge, 
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This article orginally appeared in THE COMPUTER POST - Manitoba's
Business and Technology Newspaper
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