Are there categories of works that are communicated electronically that are not subject to the current Copyright Act and which may not be made accessible on the Information Highway due to a lack of protection?
As pointed out in CAPIC's previous submissions, the issue is better understood as "Does the language of the Copyright Act sufficiently address current and future technology?"
The Act already suffers from the Promethean attempt to fit new technology on to anachronistic law. An image whether created or stored in digital form is usually considered to be a literary work while it exists in digital form. It is a series of 1's and 0's. Using current image manipulation software, we can make a slight modification to the output colour of the image. This will result in a completely different series of 1's and 0's. Only inprinted form, will we observe that the images are indistinguishable from each other.
In cases of copyright infringement, the current Act calls for the surrender of plates. Current technology permits the production of large-run, full colour publications without the use of "printing plates." The function of the plate is filled by digital technology. If the publication is a full colour magazine distributed exclusively by the Internet, every copy is the equivalent of a plate.
"Computer Program" does not suffice to cover the existence of an image in digital form. A "Computer Program" may be used to manipulate a digital image, but a digital image does not act ona "Computer Program".
CAPIC agrees that the current level of digitization of works does not result in the creation of new works falling outside the compass of the Copyright Act. However the current language is fraught with the potential for error. Creation of a separate"Multi-media Act" would compound the confusion.
Qualified creators will increasingly resist making photos, illustrations, writings, music etc available on the Information Highway where they see the potential for theft of intellectual property with little prospect of restitution. Multimedia creation is identified by the SubCommittee as being a "work of compilation". Without original works to be compiled, there is no point to multimedia.
Future developments of works which contain Artificial Intelligence, personalities or the ability to learn can not be governed by the current language of the Copyright Act.
The current act is not technology neutral as it defines a numberof elements of specific reproduction technologies. Ideally a Copyright Act would make little distinction between different mediums of expression, however it seems unlikely that the Act can be amended to neutrality in the near future. A photograph can be taken by totally digital means. Most music is today recorded digitally. Where photography and music only are incorporated in a multimedia product, which rules will we apply, those for photographs or music or literary works?
It is necessary to include digital works within an amended Copyright Act until such time as a truly neutral language can be devised.
Recommendation
CAPIC strongly recommends that an amended Copyright Act will specifically define Digital
Works. Such definition is appropriate to the current structure of the Act. For example
"Digital and/or Digital Works refers to the creation, storage, manipulation, reproduction
or distribution of any work by means of electronic, computer or digital recording
equipment."
Are multimedia works adequately covered by the definition of "work of compilation"? If multimedia works must be defined separately in the Copyright Act, how should they be defined?
Currently available multimedia works usually fall within the definition "works of compilation". Some forms of interactive multimedia are arguably audio-visual works where they consist exclusively of text and photos. Future media may replace text with speech. A "work of compilation" is considered to be a compilation of a certain type of work. All types of work incorporated in multimedia are encoded in binary form. Introduction of "digital works" to the Copyright Act will inclusively protect multimedia works while providing protection for works in forms not yet envisioned.
Most "multimedia" productions in future will be exclusively the work of small creative groups. They will in effect be self published works which may be distributed exclusively byelectronic means. Clear cut copyright law and respect for all author's rights is required. Individual creators do not have legal departments available. The object of legislation should be to make copyright law understandable by all stakeholders in an info-economy.
The real Information Highway will result from protection of all individual creators of works, no matter what form of expression is chosen.
As described previously, the only certain method at this time is a definition of digital works combined with a move to apply equivalent rights to all forms of creation. The duration ofcopyright differs between photographs, paintings and text. This is inappropriate and confusing.
Recommendation CAPIC takes the position that a true desire to assure
Canadian leadership and competitiveness on the Information Highway mandates the specific
embedding of Digital Works in the CopyrightAct.
The Copyright Act should be amended to provide equivalent protection to all works
irrespective of medium utilized.
As the Information Highway develops, are there specific works which are treated unfairly or inconsistently by current copyright legislation?
Most copyright works enjoy protection for the life of the author plus 50 years. Photographs are an aberration in that they are protected for 50 years from date of creation.
By example, many of the significant works of Canadian photographer Karsh have expired their term of copyright. The still living author has lost control over reproduction of his works. Yet minor works of an illustrator who died in 1948 are protected by copyright. This is clearly wrong.
The number of photographs taken by purely digital means is increasing rapidly.
This creates the potential for confusion and misuse. Shall we consider a digital photograph to be a plateless photograph, or is it a literary work? Where a photograph is included in a multimedia work by a single author, will different parts of the work possess different terms of copyright?
Recommendation The Copyright Act should be immediately amended to provide
thatthe length of copyright for photographs shall be the life of the author plus
fifty years.