Copyright Board
Commission du droit d’auteur
Canada
Canada
Ottawa, September 23, 2020
FILE 2020-UO/TI-13
UNLOCATABLE COPYRIGHT OWNER
Application by Ruth A. Thideman, Quesnel, British Columbia for the reproduction of
photographs featured on postcards
The Copyright Board finds that the application does not meet the requirements of section 77 of
the Copyright Act (the “Act”).
In this regard, subsection 77(1) of the Act states that
[w]here, on application to the Board by a person who wishes to obtain a licence to use
(a) a published work,
(b) a fixation of a performer’s performance,
(c) a published sound recording, or
(d) a fixation of a communication signal
in which copyright subsists, the Board is satisfied that the applicant has made reasonable
efforts to locate the owner of the copyright and that the owner cannot be located, the
Board may issue to the applicant a licence to do an act mentioned in section
3, 15, 18 or 21, as the case may be. [our emphasis]
The Board has determined that copyright for the works subject to the application no longer
subsists because of the following reasons:
1.
The photographs featured on the postcards were taken between 1914 and 1918;
2.
Between 1914 and 1918, the term of protection afforded to photographs by the UK’s
Copyright Act of 1911 was 50 years from the making of the original negative from which
the photograph was directly or indirectly derived
1
;
3.
In 1921, Canada enacted its own copyright legislation, the Copyright Act of 1921
2
. Section
47 of the Copyright Act of 1921 provided for the continuation of rights that accrued
through operation of the Copyright Act of 1911.
1
An Act to amend and consolidate the Law relating to Copyright, 1911 (UK) 1 & 2 Geo V, c. 46, s 21 see
https://www.legislation.gov.uk/ukpga/Geo5/1-2/46/enacted
2
The Copyright Act, 1921 SC 1921, c 24, s 4(1) see: http://www.digital-copyright.ca/dcc
static/Copyright1921.pdf
- 2 -
4.
Section 4(1) of the 1921 Act provides that:
Subject to the provisions of this Act, copyright shall subsist in Canada for the term
hereinafter mentioned, in every original literary, dramatic, musical and artistic work, if
the author was at the date of the making of the work a British subject, a citizen or subject
of a foreign country which has adhered to the Convention and the Additional Protocol
thereto set out in the Second Schedule to this Act [the Berne Convention], or resident
within His Majesty's Dominions; and if, in the case of a published work, the work was
first published within His Majesty's Dominions or in such foreign country; but in no other
works, except as far as the protection conferred by this Act is extended as hereinafter
provided to foreign countries to which this Act does not extend. [our emphasis]
5.
The information on points of attachment to Canada supports the view that copyright
subsisted in these photographs in 1921. Considering the historical context, it is reasonable
to conclude that the authors of the photographs would have been either British subjects,
citizens or subjects of a country signatory to the Berne Convention or residents of a
British dominion. Furthermore, without information that the postcards where first
published elsewhere than in Canada and France, Germany, and Belgium, we believe that
these were the countries of first publication;
6.
The term of protection afforded to photographs in 1921 remained 50 years from the
making of the original negative
3
until the provision was substantially amended in 1997
4
;
7.
The term of protection in the photographs expired between 1964 and 1968. As a result,
the photographs are in the public domain.
In this case, the Copyright Board cannot issue a licence. Given that the works are now part of the
public domain, no licence is required for their use.
Lara Taylor
Secretary General
3
Ibid., s 7
4
An Act to Amend the Copyright Act, SC 1997, c 24, s 7.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.