Matt Lonsdale is a JD Candidate at Dalhousie University

Our view of the world is both reflected in and informed by the creative works we produce and consume. Whether dealing with news reports or Top 40 hits, archivists have a special interest in creating durable copies of these cultural artefacts. A new study from the Library of Congress addresses the difficulties faced by archivists in the United States. The study, which focused on sound archiving, devotes a chapter to the difficulties of reconciling the preservation of significant works with the interests of copyright holders. Its conclusion was that it was only because copyright holders did not always enforce their rights that any audio preservation was achieved. It further stated that copyright law reform “remains the key solution to preserving America’s recorded sound history”. This conflict between cultural preservation and copyright law is equally relevant here in Canada, particularly as we await the passage of Bill C-32.

Section 30.1 of the Copyright Act allows libraries, archives and museums to make copies of works in their permanent collection for preservation purposes. This provision is of little use to an institution wishing to create an archival copy of a work owned by a private collector or for which no copies have been made available by the copyright holder. Section 29.24, the “backup copy” exception that would be introduced by Bill C-32, suffers from similar problems.

A more powerful mechanism for cultural preservation is found in Section 11 of the Library and Archives Act. If the Librarian and Archivist of Canada considers a recording to have archival value, they may “require any other person who is legally entitled to provide such a copy to provide... a copy of that recording in the form and quality that the Librarian and Archivist determines is suitable for archival purposes”. Section 30.1 of the Copyright Act further clarifies that it is not an act of copyright infringement for the Librarian to make such a copy themselves.  It is unclear how this provision will be interpreted in light of the proposed amendments to Section 41, the “digital lock” provision of Bill C-32. This section would hold that “no person... may circumvent a technological protection measure”. This could carve an exception out of the Librarian’s power to create archival copies themselves; but the power to require a copyright owner provide an unencumbered copy should persist.

Accidents happen, and original copies can be lost or destroyed. In order for Canada to preserve an adequate record of our cultural heritage, we must find a way to balance the interests of copyright holders with the need to create durable copies of the creative works that embody it.