When does the government have copyright in the materials it creates? Michael Geist has an interesting column today addressing when, if ever, it is "appropriate for any private broadcaster to maintain copyright control over the public discussion and debates of elected officials" (he has a supplemental post here). In short, can C-SPAN, the US cable channel which films and broadcasts Congressional hearings and debates, assert coyright ownership over that footage? As Geist points out, C-SPAN now permits non-commercial usage of its footage. In Canada, CPAC, the equivalent of C-SPAN, does not assert copyright control over footage of Parliamentary debates - but unfortunately it takes the position that the Speaker of the House and the Senate do have copyright ownership over those same debates. In other words, in Canada you would, stricly speaking, need to obtain the permission of the Speaker of the House if you wanted to, say, create a parody clip using footage from Question Period which you had recorded off of CPAC.
A situation raising similar issues arose earlier this year when the Conservatives used footage from a Liberal leadership debate in some television ads - as I concluded at the time, had anyone been interested in pressing the issue, the Conservative Party likely would have come out on the losing end of that particular tussle.
While I'm hesitant to see connections where they aren't warranted, I think the difference between the C-SPAN position and the CPAC position can be traced to an analogous underlying matter: how Canada and the U.S. answer the question of when government itself has copyright in material it creates.
Under the U.S. Copyright Act, "Copyright protection under this title is not available for any work of the United States Government" (subject to certain exceptions). A "work of the United States Government is defined to mean is "a work prepared by an officer or employee of the United States Government as part of that person's official duties".
Contrast that with the position under the Canadian Copyright Act: section 12 provides that "Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year".
The default positions are thus mirror images: in Canada the assumption is that the government owns copyright in works created under its authority, whereas in the United States the assumption is that the government does not own the copyright.
Couple that starting position with a more robust "fair use" doctrine (as opposed to the Canadian "fair dealing" concept) and you start to see the contours of how we ended up in a situation where political discourse undertaken in public can become the subject of copyright claims. As I said, it's hardly a straight line, but the differing conceptions of the public sphere and the importance of free-ranging expression certainly inform the matter.
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