Last month, in celebration of Black History Month, thousands of Internet users engaged in a small act of civil disobedience. They downloaded Eyes on the Prize, the award-winning documentary on Dr. Martin Luther King, which is no longer available for purchase due to the expiry of rights to certain clips used in the film.
The mass downloading was meant to bring attention to the barriers that are sometimes created by copyright, including the crushing complexity and costs involved in obtaining rights for small snippets of film. The issue has become particularly relevant in recent years since technology and the Internet place the tools to create and distribute new work into the hands of millions.
While Canadian documentary makers face similar challenges in clearing the necessary rights to complete their films, they also face an additional burden not found in the United States. Crown copyright, which provides that the government retains the copyright associated with any work that is prepared or published by or under its direction, creates an enormous and unconscionable barrier to Canadian film making, political advocacy, and free speech.
Dating back to the 1700s, crown copyright reflects a centuries-old perspective that the government ought to control the public’s ability to use official documents. Today crown copyright extends for fifty years from creation and it requires anyone who wants to use or republish a government report, parliamentary hearing, or other work to first seek permission. While permission is often granted, it is not automatic.
The Canadian approach stands in sharp contrast to the situation in the U.S. where the federal government does not hold copyright over work created by an officer or employee as part of that person's official duties. Accordingly, government reports, court cases, and Congressional transcripts can be freely used and published.
The existence of crown copyright (or lack thereof) affects both the print and audio-visual worlds. For example, the 9-11 Commission’s report, released last year in the U.S., was widely available for free download, yet it also became a commercial success story as the book quickly hit the best seller list once offered for purchase by W.W. Norton, a well-regarded book publisher.
By comparison, a Canadian publisher seeking to release the forthcoming Gomery report as a commercial title would need permission from the government to do so. To obtain such permission, the publisher would be required to provide details on the intended use and format of the work, the precise website address if the work is to appear online, as well as the estimated number of hard copies if the work is to be reprinted. If the work is to be sold commercially, the publisher would be required to disclose the estimated selling price.
The difference between the Canadian and the U.S. approach is just as pronounced in the documentary film arena. Consider, for example, a Canadian creating a film about a controversial political issue such as same sex marriage or gun control. The filmmaker might want to include clips from politicians speaking to the issue in the House of Commons.
After obtaining the desired video from the House of Commons, the filmmaker would be presented with a series of legal terms and conditions limiting its use to school-based private study, research, criticism, or review as well as news reporting on television and radio outlets that are licensed by the CRTC. Everything else, including any commercial use of the video, would require the prior written approval from the Speaker of the House.
Contrast this situation with one found in the U.S. Last year’s controversial Michael Moore documentary Fahrenheit 9/11 featured a riveting scene in which a steady procession of members of the U.S. Congress rose to challenge the outcome of the 2000 U.S. Presidential election — only to have then Vice-President Al Gore reject each in turn. While Moore faced challenges obtaining the necessary rights for some of the works that he included in his film, given the state of U.S. law, this segment was not one of them.
There have previously been calls for crown copyright reform in Canada, yet the urgency associated with eliminating the outdated notion of government control over work product bought and paid for by the Canadian public has never been greater. Led by Industry Minister David Emerson and Canadian Heritage Minister Liza Frulla, parliamentarians and policy makers have spent years working on new copyright reforms that will primarily benefit a select group of predominantly foreign rights holder groups, but have devoted virtually no time to identifying reforms that would benefit the broader Canadian public by treating individuals as both consumers and creators of copyrighted works.
The Internet and new technologies foster that dual role, providing millions of Canadians with the ability to create and distribute new culture, political speech, and entertainment. Canadians admittedly have access to government documents and audio-visual materials through government publishing and access to information requests, however, they still lack the unfettered right to use those materials.
Eliminating crown copyright and adopting in its place a presumption that government materials belong to the public domain to be freely used without prior permission or compensation would change that. The use of such work without approval from the Speaker of the House should not be a case of civil disobedience. It should be the law.