10. Another Perspective

 

B. Options for Administration of Intellectual Property Rights in
CCCanadian Cultural Heritage Institutions (continued)

Conclusion

Collective administration of copyright in Canada is not without its pitfalls. Initially, collective administration sought to balance the relationship between the copyright holder and the user of copyrighted material so that bargaining strengths were equalized. In attempting this alignment, a complex system of collective administration was introduced. To address anticompetition issues, an administrative tribunal with the jurisdiction to oversee royalty rates was deemed necessary.

Despite its complexity, the system has provided both the user and the copyright holder with certain advantages. Low-cost access to works protected by copyright has been provided by collectives operating in certain sectors of the cultural community. Reprography collectives, for example, have allowed educational institutions to access works at low cost. The system of collective administration has increased the circulation of information, thereby serving the public interest.

Canadian cultural heritage organizations could benefit greatly from collective administration of copyright, and the Canadian legal system offers incentives for doing so. While exceptions to copyright law in Canada may diminish the educational market for cultural organizations, this potential problem can be remedied by collective action, which secures educational markets under copyright law.

However, the Canadian form of collective administration also presents interesting limitations for the cultural community. Unlike its U.S. counterparts, collective societies in Canada face the Copyright Board’s potential intervention in determining its royalty rates. A sound pricing policy can help maintain a collective’s credibility before the Copyright Board, and reduce the possibility of Board intervention when consumers of intellectual property from cultural organizations object to usage fees.

Another concern is the exclusivity requirement mandated by many Canadian collective societies. Exclusivity limits an organization’s control over its own intellectual property. Ideally, members should grant collective societies the nonexclusive right to manage their copyright so that cultural organizations can continue to control the exploitation of their own intellectual property.48

Many existing collectives or associations are just now facing issues presented by digital media, such as instant and almost perfect reproductions of works. Canadian law is playing "catch-up" at the moment, and many issues (such as copyright on databases and electronic reproduction rights) are unresolved. Technology is ever evolving and will enable new ways to protect and exploit intellectual property. Cultural heritage organizations must ensure that the collectives they join stay informed of changes in technology and law, so that the collectives can continue to act in the best interests of their members.

 

Introduction to
Managing Digital Assets