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Late last week I was asked by the media to comment on a copyright dispute between the Library and Archives Canada and CARFAC and RAAV, organizations that represent the interests of visual artists. When LAC tried to get artists to sign this standard form licence agreement granting the Government rights to use artworks in various ways, CARFAC and RAAV came out with this public release urging artists not to capitulate. The story was pretty much killed when LAC backed down, so my interview never aired, though the Globe did run a small piece on the issue.
Because I still think the story is interesting, I wanted to provide a few remarks about it before it fades away. First, as someone who has worked with CARFAC Ontario in the past to teach visual artists about their rights, and a writer/creator myself, I'm very sympathetic to the need to defend artists against exploitation. But as a scholar and educator, I also understand the difficult position LAC finds itself in when wanting to use copyright-protected works for sometimes innocuous purposes. So here's my view on this dispute ...
The basic problem is that the licence LAC sought was over-broad and
under-valued. It wanted a licence to use, for free, artworks "for the
purposes of the Government of Canada." But LAC didn't specify or limit
what those purposes might be, except to say: "This material may be used
in a variety of cultural and historical projects, including websites,
publications, exhibitions and promotional materials designed to promote
and conserve our Canadian heritage." That's pretty vague. The
awkwardly-worded licence makes mention of "educational, editorial and
promotional purposes," though it isn't clear whether the Government
would've be limited to those purposes, or if so, how those purposes
could be defined. The licence also would've been worldwide, last for
the entire term of the copyright and protect not only the Government
but also all of its contractors or subcontractors. And the Government
would have been able to authorize educational institutions, including
teachers and students, to use the works for educational purposes, for
free. Again, rather vague and sweeping, if you ask me.
It is not, however, a request that artists "cede
their copyright to the Canadian government in perpetuity" as CARFAC and
RAAV characterized it in their release. The request was for a
non-exclusive licence, which means artists would've kept their
copyrights and the right to licence other entities, or even other uses
by the Government. Artists would not, as CARFAC and RAAV
misrepresented, have been "signing away [their] copyright ownership."
And though there was a request in the licence to allow cropping, for
example, there was no real requirement of "renouncing part of [artists']
moral rights." The fear that an artwork might be "improperly manipulated, or used without [their] consent to convey messages that [they] may not agree with" is reasonable, but probably over-stated. I'm not convinced the licence as worded would've given the Government carte blanche to completely disregard artists' integrity and other moral rights. At least I doubt that was their intent.
Now,
I'm not saying I would've advised artists to sign this licence. I wouldn't have. It just
seems to me that the spin wasn't justified. If anything, exaggeration
is likely to lead to further polarization of copyright debates and
impede a mutually satisfactory resolution to an understandable dilemma.
Hopefully now that the LAC has promised to reconsider their request,
CARFAC and RAAV can offer some constructive solutions to solve the
problem.
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