Illustrating Options:
Collective Administration of Intellectual Property for Canadian Cultural Heritage Institutions

11. Potential for the Future-Licensing Electronic Rights

The administration of collectives may not have to change substantially in order to manage electronic rights.⁴¹ What will need to be clarified is the concept of electronic rights and their legal interpretation.

The status of electronic rights as a unique type of right, or as part of an overall "one-time right" to publish, remains unclear. Certain freelance publishing agreements have no express provisions granting electronic rights to publishers, but publishers nevertheless place their print materials on their respective Internet sites. A court action spearheaded by a number of writers' associations has recently been launched in Canada to contest such use.⁴²

Of late, electronic rights have been challenged in a new way in Canada. The law affecting the copyright status of databases was changed substantially by a recent decision of the Federal Court of Appeal of Canada. Prior to the Court's decision, it was generally assumed that copyright subsisted on databases that held mostly factual information. The threshold test that determined whether a work was "copyrightable" was much lower in Canada than in the United States where a certain level of creativity is required for a database to be copyrighted. The Federal Court of Appeal in Canada agreed with the creativity requirement in place in the United States, and raised the threshold requirements for databases in Canada. Databases now receive copyright protection in Canada only if they can be considered "intellectual creations."⁴³ The end result of this decision is that many electronic works once considered copyrightable no longer enjoy copyright protection.

Collective societies in Canada are now addressing the issue of electronic rights. As an example, SOCAN has applied to the Copyright Board to obtain the authority to collect royalties for the use of musical works over the Internet. A new collective called The Electronic Rights Licensing Agency (TERLA)⁴⁴ is being launched to represent the rights of Canadian freelance writers, photographers, and illustrators. It hopes to provide convenient rights clearance services to publishers that wish to distribute Canadian written works electronically.

Another new project is Canadian Artists Represented Online (CAROL), which will make contemporary visual works of art available for licensing on an Internet-based system, thereby securing a place for visual artists in the new technology market. The economic model proposed by the CAROL project is based on "fair remuneration" for contemporary artists, including the coverage of overhead costs. The CAROL project is currently in the test bed stage, working with local collective societies and partners in the telecommunications industry, and incorporating the latest technologies in order to control use of its repertoire in an electronic environment.⁴⁵

Finally, CHIN has embarked on a rights management initiative for its museum members. CHIN has managed museum databases for twenty-five years, and has been managing the electronic rights of its museum members since its inception. Museum members hold copyright on the information in the CHIN databases, and CHIN has assisted in the protection of its members' copyright and launched a subscription service to the databases. CHIN has now launched a site licensing service and is also exploring the possibility of a more complex rights management program.⁴⁶