Nov 4, 2015

The TPP vs. Municipal Archives

Check back in about 70 years, okay?
Part of my mandate for this blog is helping people in my age demographic and younger to focus on digital issues which affect us, presently or in the near future. Recently, there's been a lot of talk about the titanic treaty known as the Trans-Pacific Partnership (or "TPP"). The TPP is utterly overwhelming: covering a myriad of things from dairy farmers to the internet. Like the (former!) Conservative government's omnibus budget bills, the expansive scope of the agreement makes the TPP very difficult to understand, dismantle, and most importantly, to debate.

One of the TPP areas of scope which is critical to discuss is the section on copyright. At this point, several notable bloggers* have covered the TPP's copyright extension provisions in great detail. But what do those provisions mean for you? Let's bring it down to the ground. For example: folks in my demographic seem to love seeing old-timey photos of their city. Here in Vancouver, exploring our retro-downtown through old photographs of various eras is practically an official pastime.

A quality source of such photo collections is a city's municipal archives. Traditionally, an archives' mandate is to store physical objects and documents, which include the physical "analog" photos taken during most of the 20th century. "Great!" someone might say, "the archives can just digitize those photos and put them up on their website, right?"

Let's ignore the fact that the solution my strawperson proposes has a host of logistical issues attached, not the least of which is the thousands of work-hours required to digitize physical materials. Our focus is copyright - just because the archives has the original, physical photo in their collection doesn't mean that they own the rights to it.

You have to remember that our newfangled, internet-enabled society is relatively new. When I was a child, if a person wanted to see a historical photo from a city archives, they would actually have to physically GO to said archives and ask an archivist to retrieve the appropriate fonds containing the photo. Journalists and other professionals likely did this regularly, but for the most part, the public at large didn't usually head down to a municipal building and ask an archivist to search through their collection just to look at a few old photos.

Today, things are much different. If a municipal archives has digitized a significant portion of, say, their collection of 19th and 20th century historical photos, then those photos can be curated online; made accessible to the public at large for everyone to access, learn from, and enjoy!

If it sounds to good to be true...

For many big photo collections, copyright is a significant issue to contend with. Who took the photo? Was it an individual person, a business, or another institution? Did they release it into the public domain? Sometimes, archives many not even have such information available.

Furthermore, when it comes to a historical photo archive, we don't usually curate and view media based on the photographer (unless said photographer was particularly exceptional). Instead, we do it by event. Consider the following:

Georgia Street, Vancouver - ca. 1940
courtesy City of Vancouver Archives
Let's say that "Fictional City" has a big collection of photos of "Major Expo"; an event which took place in 1950. Their city archives wants to curate a photo gallery on their website showcasing Major Expo, using roughly a hundred photos from diverse perspectives and locations.

Some of the photos, we'll call them "Group A", were explicitly released into the public domain by the photographer, so those are okay to use. Another bunch, "Group B", are photos whose photographer died more than fifty years ago (1965 and before); any copyright on these photos is expired. Some "Group C" photos were commissioned by a businesses, or the rights were specifically sold to a corporation, which means that the archives will have to get permission or pay a fee to make them available online. Most frustrating is the big "Group D", whose authorship/ownership is sadly ambiguous, for various reasons**. It would be risky for the archives to include the Group D photos in their collection, since they might be violating the copyright of the original author.

So already, knowing and managing the tangle of copyright laws is a huge part of curating these event photos. Hang on, because the TPP is here to make it even worse.

It's been long-known that the United States is very set on a worldwide-standard copyright term of seventy years from the death of the author. Sadly, such a provision made it into the TPP. Worse still, a release by New Zealand's government indicates that this change could be retroactive, meaning that those photos in my hypothetical "Group B" would be yanked out of the public domain and put back under copyright.

Municipal archives, like many public institutions, are organizations with limited manpower, which often have to compete for funding and other resources within a city's budget. Retroactive changes to copyright expiry means that these archives have to go back through materials they've already published online, auditing them to see what, specifically, they'd need to yank off websites in order to avoid legal liability due to copyright violation.

Consider the math as well: Suddenly changing Canada's copyright term from fifty years to seventy means two decades where zero historical work enters the public domain. That's quite a drought.

Of course, if you want to take the bus to the city archives and view the physical copies of the photos, by fonds, one at a time... That's perfectly legal.

For those of us who have lived the majority of our lives in the internet era, this approach seems totally backwards. The value of what's in the public domain cannot be underestimated: it has cultural, educational, and in terms of those city photos, an ineffable, almost spiritual value. No institution undertaking the endeavour of curating historical photos online is out to make money; rather, it is an instrument for public enrichment.

It's important to remember that copyright law exists to protect the rights of individual artists - in this case photographers. Copyright law helps artists to make a living, free from the peril that their work will be copied without permission or reimbursement, nor used in a way they don't agree with. That being said, it seems overly protectionist that, even fifty years after the death of the original artist, photos can't be exhibited freely by institutions like municipal archives for their educational and historical value. Balancing the rights of artists and the public at large is a difficult act, but it requires us to do better.

* For more perspective on what the TPP means for copyright law in Canada, check out out Michael Geist's typically excellent commentary on the subject, as well as library-archive sciences blog Bibliocracy. Lastly, OpenMedia has a lot of posts on the subject. If you'd like to encourage our new government to open up the TPP to full public scrutiny and debate, add your voice at

** Some of the many reasons that the rights of a physical photo might be ambiguous could include:
  1. That the original photographer is unknown or anonymous; 
  2. That the person who donated the physical photo to the archives collection may not actually be the rights-holder of the photo, but merely someone who owns a physical copy.
  3. That the physical photo was donated to the archives by a rights-holder before the advent of digitization, therefore, the archives does not have explicit rights to display the photo online;
Thanks also to the love of my life and partner - a grad student at UBC's School of Library, Archival and Information Studies - for helping me to edit this article and ensure accuracy. ❤️

Original handcuffs image courtesy of Vector Portal