Copying what's in the Archives

Copyright guidelines for researchers


The information on this page is intended to be a guide, and should not be considered a legal authority or a comprehensive interpretation of the Copyright Act. Researchers with a particular concern are urged to seek a qualified legal opinion.

Researchers should be aware that the rules regarding photographs, sound recordings, and audio-visual works such as films and videotapes are particularly complex. Those who are planning to use such works for any purpose other than research or private study should seek additional information. The Archives Library holds a number of works on copyright which may provide further guidance.

What is Copyright?

Copyright is, literally, the right to copy. It is the framework within which creators of original works are entitled to payment for the use of their works. The Copyright Act applies to a wide range of original works, including books, films, diaries, music, letters, sound recordings, photos, and a host of other items found in the holdings of archives and libraries. While a memo from a City bureaucrat about property tax policy may not generate the same interest as Margaret Atwood's latest novel, or a photograph of the first streetcar, all are subject to the rules in the Copyright Act.

How the Copyright Act works

In a nutshell, authors create works in which they hold certain rights for a specified period of time. The Act divides works into different categories, and the rules for determining who owns the copyright and for how long vary, depending on the category of work. The Act also specifies the rights of copyright holders, i.e., there are certain things that only the copyright holder can do with that work. These include the sole right to:

  • produce or reproduce a work or a substantial part of it in any form,
  • publish the work or a substantial part of it, and
  • perform the work or a substantial part of it in public.

These rights last for a specified period of time. After the copyright has expired, the work is said to be in the public domain, and may be used without the authorization of the copyright holder.

The Act includes limited exceptions which permit others to use the work without the authorization of the copyright holder or payment of royalties. Some of these exceptions apply to researchers in archives and libraries. The Act also provides penalties for infringement of the copyright holder's rights.

The Act permits archives and libraries, under certain conditions, to provide researchers with a single copy of certain works for research or private study without the authorization of the copyright holder.

What are the researcher's responsibilities?

A researcher who wants to use a copy of anything in the Archives holdings for a purpose other than research or private study must seek the necessary authorizations from the copyright holder.

Examples of uses that require the copyright holder's permission are:

  • Making further copies by photocopying, scanning, or other duplication method
  • Posting on the internet
  • Publishing (defined in the Act as the issuing of copies to the public in a quantity which satisfies the reasonable demands of the public, having regard to the nature of the work)
  • Playing a sound recording or audio-visual work in public
  • Presenting certain artistic works at a public exhibition

Once the term of copyright in a work has expired, it is no longer necessary to obtain the authorization of the copyright holder for the use of the work. However, researchers wishing to publish items from the Archives holdings must obtain the Archives' permission to ensure that the source of such items is acknowledged in a standardized fashion.

Locating the copyright holder

It is the responsibility of the researcher, not the Archives, to locate the copyright holder.

The Archives may be able to assist in cases where the Archives acquired copyright in the works at the time of acquisition, or where it has the authority to administer copyright on behalf of the City. In these cases you should write to the Archives with a request for the appropriate authorization clearly describing the work(s) and how you intend to use it/them.

 

Copyright guidelines for different types of material

The following tables provide the general rules for copyright in the following types of holdings in the City Archives:

Published Textual Material
Unpublished Textual Material
Maps and Plans
Photographs
Sound Recordings
Films/Videos

Permitted Exceptions

Where more than one permitted exception applies, they are listed in the order in which they would be applied, i.e., the most generous exception is listed first.

Fair Dealing

The fair dealing' exception needs some explanation. The Act provides that it is not an infringement of copyright to deal 'fairly' with a work for the purposes of research, private study, criticism, review, or news reporting. Unfortunately the Act does not define what is 'fair'. A court would look at factors such as:

  • the quantity of the work copied,
  • the nature of the work copied,
  • how the copy was used,
  • the value of what was copied, and
  • whether what was copied interferes with the sale of the original work.

It should be noted that lawyers do not agree on whether fair dealing applies to unpublished works.

Copyright Term of 'Life of author + 50'

The phrase 'Life of author + 50' has been used as a short form for the actual term of copyright which is the life of the author, the remainder of the calendar year in which the author died, and a period of fifty years following the end of that calendar year.

 

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Published Textual Material

Type of MaterialCopyright HolderTerm of CopyrightPermitted Exceptions
Books & published reports (See note below) Author Life of author+ 50 Fair dealing
Pamphlets Author Life of author+ 50 Fair dealing
Article in a periodical more than one year old Author if a freelance writer (unless there is an agreement transferring copyright to the periodical); the periodical if the writer was one of its employees Life of author+ 50

i A single copy of an article for research or private study, provided that records are kept

i Fair dealing

Article in a periodical less than one year old Author if a freelance writer (unless there is an agreement transferring copyright to the periodical); the periodical if the writer was one of its employees Life of author+ 50 Fair dealing
Newspaper articles or clippings more than one year old Author if a freelance writer (unless there is an agreement transferring copyright to the newspaper); the newspaper if the writer was one of its employees Life of author+ 50

i A single copy of an article for research or private study, provided that records are kept

i Fair dealing

Newspaper articles or clippings articles less than one year old Author if a freelance writer (unless there is an agreement transferring copyright to the newspaper); the newspaper if the writer was one of its employees Life of author+ 50 Fair dealing
Article in a scholarly, scientific, or technical periodical Author if a freelancer (unless there is an agreement transferring copyright to the periodical); the periodical if the writer was one of its employees Life of author+ 50

i A single copy of an article for research or private study, provided that records are kept

i Fair dealing

City Directories Publisher Life of author+ 50 Fair dealing

 

  • Copyright Act Category: Literary Works
  • Note, however, that a book composed mainly of photographs or maps would be considered an artistic work, a book of plays a dramatic work, and a book of sheet music a musical work.
  • City Directories are a compilation within the Literary Works category

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Unpublished Textual Material

Type of MaterialCopyright HolderTerm of CopyrightPermitted Exceptions
Unpublished records of the City of Toronto or its predecessors, e.g., letters, memos, reports, etc. City if the author was one of its employees; otherwise copyright holder is the author of each work

Life of author+ 50

Note: There is a complicated series of term rules for unpublished works whose authors died on or before 31 Dec. 1998. See National Archives Staff Guide to Copyright.

i A single copy of a work for research or private study, provided that records are kept

i Fair dealing

Note that lawyers disagree on whether fair dealing applies to unpublished works

Unpublished private manuscripts, e.g., letters, diaries, memoirs

AND

Unpublished dissertations, theses, essays

Author of each work

Life of author+ 50

Note: There is a complicated series of term rules for unpublished works whose authors died on or before 31 Dec. 1998. See National Archives Staff Guide to Copyright.

i A single copy of a work for research or private study, provided that records are kept

i Fair dealing

Note that lawyers disagree on whether fair dealing applies to unpublished works

Copyright Act Category: Literary Works

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Maps and Plans

Type of MaterialCopyright HolderTerm of CopyrightPermitted Exceptions
Published maps and plans Employer if the author was one of its employees; otherwise copyright holder is the author Life of author+ 50 Fair dealing
Unpublished maps and plans Employer if the author was one of its employees; otherwise copyright holder is the author Life of author+ 50

i A single copy of a work for research or private study, provided that records are kept

i Fair dealing

Note that lawyers disagree on whether fair dealing applies to unpublished works

Copyright Act Category: Artistic Works

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Photographs

 

The 'author' of a photograph is deemed to be the person or corporation who owned the initial negative or (in the case of digital photography where there is no negative) the initial photograph at the time the photograph was made.

To calculate the term of copyright in photographs, you must determine who the 'author' is, i.e., who owned the initial negative or photograph. There are three possible situations.

  1. If the 'author' is a natural person, the term is the life of that person plus 50.
  2. If the 'author' is a corporation in which the majority of voting shares are owned by a natural person who is the author of the photograph, the term is also the life of that person plus 50. An example would be the case of a photographer who has incorporated his business but who owns all of the shares in the corporation. While the copyright owner is the corporation, the term is based on the life of the natural person who is the majority shareholder.
  3. If the 'author' is a corporation in which the majority of voting shares are NOT owned by a natural person who is the author of the photograph, the term is 50 years from the making of the photograph. An example would be the case of a photograph taken by the employee of a newspaper. The newspaper owns the initial negative. The newspaper is a corporation with many shareholders. In this case the term is not based on the life of an individual, but on the date of the making of the photograph.

Type of MaterialCopyright HolderTerm of CopyrightPermitted Exceptions
Photographs taken on/before 31 Dec. 1948 In public domain Expired N/A
Photographs taken on/after 1 Jan. 1949

Owner of initial negative at the time the photograph was made

OR

Employer if made in the course of employment

OR

Person ordering the photograph for valuable consideration. After 1 July 1998, the person ordering the photograph must also have paid the fee, otherwise the owner of the initial negative retains the copyright.

See notes above.

Life of 'author' + 50

UNLESS

The 'author' is a corporation in which the majority of voting shares are not owned by a natural person who is the author of the photograph, in which case the term is 50 years from the making of the photograph.

i A single copy of an unpublished photograph may be provided for research or private study, provided that records are kept

i Fair dealing

Copyright Act Category: Artistic Works

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Sound Recordings

 

The 'maker' of a sound recording is defined as the person who undertakes the arrangements necessary for the fixation of the sounds. Such arrangements would include entering into contracts with performers, as well as financial and technical arrangements.

Note that, depending on the content, a sound recording may contain more than one copyright. For example, a recording of someone singing a song could include a copyright in the song (a musical work), a copyright in the performance, and a copyright in the sound recording itself.

Type of MaterialCopyright HolderTerm of CopyrightPermitted Exceptions
Sound recordings, i.e., any recording of sounds fixed in any material form (e.g., audiotapes, vinyl disks, CDs) Maker First fixation + 50 years Fair dealing
Oral Histories Maker (most likely the interviewer unless there is an agreement to the contrary) First fixation + 50 years Fair dealing

Copyright Act Category: Sound Recordings

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Films/Videos

 

The author of a cinematographic work is the person by whom the arrangements necessary for the making of the work are undertaken.

Type of MaterialCopyright HolderTerm of CopyrightPermitted Exceptions
Cinematographic works made on or after 1 January 1999 Author Life of author + 50

i A single copy of an unpublished work can be made for research or private study, provided that records are kept

i Fair dealing

Cinematographic works made between 1 January 1994 and 31 December 1998. Author Depends on whether the work is published or unpublished, and the death date of the author. See chart in the National Archives Staff Guide to Copyright.

i A single copy of an unpublished work can be made for research or private study, provided that records are kept

i Fair dealing

Cinematographic works made before 1 January 1994 which have original character Author Depends on whether the work is published or unpublished, and the death date of the author. See chart in the National Archives Staff Guide to Copyright.

i A single copy of an unpublished work can be made for research or private study, provided that records are kept

i Fair dealing

Cinematographic works made before 1 January 1994 which do NOT have original character are protected as photographs Owner of initial negative

If published within 50 years of making, term is year of publication + 50;

If unpublished, term is year of making + 50

i A single copy of an unpublished work can be made for research or private study, provided that records are kept

i Fair dealing

Copyright Act Category: Cinematographic Works (a sub-category of Dramatic Works)

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