The paradox of the modern Canadian museum is as frustrating as it is pervasive. We live in an era where high-resolution imagery and instant connectivity are the default modes of human interaction. Yet, if you attempt to browse the digital archives of many of Canada’s prominent public galleries and museums, you will likely find the experience disappointing. Vast swaths of the national artistic heritage remain locked away, inaccessible to the public via digital platforms. While one might assume this is due to a lack of technical foresight or funding, the reality is far more bureaucratic and legally precarious. Many of these institutions are governed by a paralysing fear of litigation. They hold the physical paintings and sculptures, but they are terrified to reproduce them online because of the punitive nature of the Canadian Copyright Act.
This appears to be a failure of policy. Canada is currently presiding over a situation where public institutions, funded by the taxpayer to preserve their heritage for the public good, are forced to operate as if they are private entities infringing upon intellectual property. It is a misalignment of legal priorities that requires immediate attention. It is time that the Act is deconstructed the legislative framework catches up to digital reality.
The Fundamental Misconception: Ownership vs. Copyright
The primary issue plaguing Canada’s public institutions is a misunderstanding, often shared by the public and occasionally by museum boards, of what it means to “own” a work of art. In the eyes of the law, the ownership of a physical object—a piece of chattel, such as a canvas or a bronze bust—is entirely distinct from the ownership of the copyright (the intellectual property) associated with that object.
A copyright owner can elect to claim statutory damages rather than proving actual damages. For an infringement, a court may award between $500 and $20,000 for all works infringed, depending on the circumstances.
Under the Copyright Act (R.S.C., 1985, c. C-42), the copyright owner possesses the sole, exclusive right to produce or reproduce the work in any material form. Section 3(1) of the Act is the cornerstone of this dominance. It stipulates that copyright includes the sole right to produce or reproduce the work or any substantial part thereof in any material form. When a museum purchases an artwork, it acquires the physical object, but it does not automatically acquire the copyright. Unless the artist has specifically assigned the copyright to the museum—a process governed by Section 13(4) of the Act, which requires a written agreement—the copyright often remains with the artist or their estate for the duration of the author’s life plus seventy years.
Because of this bifurcation, a museum that reproduces a copyrighted work on its website, even for the purpose of showcasing its own collection, is technically engaging in an act that falls within the exclusive right of the copyright holder. If they do not have explicit permission, they are, at least on paper, infringing.
The Sword of Damocles: Statutory Damages
The fear that grips museum administrators is not irrational; it is a calculation of risk versus reward. The Canadian Copyright Act provides for statutory damages under Section 38.1, which serves as a sword of Damocles hanging over the heads of these institutions. A copyright owner can elect to claim statutory damages rather than proving actual damages. For an infringement, a court may award between $500 and $20,000 for all works infringed, depending on the circumstances.
However, if the infringement is deemed to be for commercial purposes, or if the court finds it appropriate, these figures can become quite threatening. While there are provisions for “innocent infringement” that may reduce the award, the prospect of facing a lawsuit where the potential liability is multiplied by the number of works in a digital collection is a nightmare that no museum director is willing to entertain. Even if a museum has a strong argument for “fair dealing,” the cost of litigation and the potential for a large damage award creates a chilling effect. Most institutions would rather keep the images off the website than risk a single letter from a lawyer representing an estate or a litigious rights holder.
Analyzing Section 30.1: The Illusion of Protection
There is a common argument among those who believe the current law is sufficient, centered on Section 30.1 of the Copyright Act. This section allows libraries, archives, and museums to make copies of works in their permanent collection for the purposes of maintenance, management, or exhibition. On its face, this seems like a broad exemption. However, the legal definition of “exhibition” and the scope of “management” have not been effectively tested or modernised to fully encompass the complexities of global digital dissemination.
Canada need a legislative amendment that creates a specific, unambiguous exception for public galleries and museums.
The section was designed in a pre-digital or early-digital context. It is meant to protect the institution if it needs to make a backup copy of a fragile work for preservation or display an image within the physical gallery space. It does not provide an unambiguous, blanket protection for the museum to upload its entire collection to the internet for public viewing. When a museum publishes an image on its website, it is making that image available to the entire world, not just to the people walking through its doors. Lawyers for these institutions correctly identify that Section 30.1 does not explicitly grant the right to publish copyrighted works online for global, public consumption. Consequently, museums remain in a grey area where they are technically functioning as publishers, yet they are restricted by a law that views them as custodians of physical space.
The Necessity of Fair Dealing Reform
If people wish to see their national collections digitalised, they must address the limitations of the “Fair Dealing” provisions found in Section 29 of the Act. Currently, Fair Dealing permits the use of copyrighted material without permission for purposes such as research, private study, education, parody, satire, criticism, review, or news reporting.
The dilemma is that the simple display of an art collection on a gallery website does not clearly fit into these narrow buckets. Is browsing a gallery’s digital collection “research”? Perhaps, but the threshold is subjective. An institution cannot build a sustainable digital policy based on the hope that a court will interpret “research” expansively. Canada need a legislative amendment that creates a specific, unambiguous exception for public galleries and museums. This exception should explicitly allow for the digital reproduction and dissemination of works within their collections, provided that the institution is acting in the public interest and is not directly commercialising the works for profit.
By carving out a “Public Institution Exemption” for digital access, Canada would effectively remove the threat of statutory damages. If the legislation were clear in stating that a public gallery may display images of its permanent collection online for the purposes of public education and access, the litigation risk would not exist. The current ambiguity is a bug that actively prevents Canadians from engaging with their own national heritage.
The Broader Cultural Implication
The failure to digitalise collections is not just a minor inconvenience for art lovers; it is a failure to preserve and transmit cultural history. In the 21st century, if a work of art is not visible online, it is, for all practical purposes, invisible to the majority of the population. Students, researchers, and the general public in remote or underserved areas rely on digital archives to bridge the gap. When museums shutter their digital doors, they are effectively hoarding culture for the few who can afford the time and travel to visit in person.
Furthermore, Canada must address the issue of the government’s role. Many of these museums are state-funded, state-governed, or operate on land and infrastructure provided by the taxpayer. It is intellectually dishonest for the state to fund a museum’s existence while simultaneously maintaining a copyright framework that makes that museum’s primary mission, i.e. sharing art, a legal liability. The government has the power to resolve this conflict by modernising the Copyright Act. It is a matter of political will.
A Path Forward for National Importance
Canada must advocate for a legislative environment where public importance is weighed against individual property interests. While, everyone acknowledges the right of the artist and their estate to be fairly compensated, there is a need to look at a balanced approach: one where the copyright owner retains the right to monetise the work for print, reproduction, and merchandise, but where the public institution retains the right to display the work in a digital repository of national importance.
This balance is not radical.
The current situation is a stalemate. Canada has museums with thousands of un-viewed works, and a public that is hungry for digital access, all being kept apart by a legal framework that treats public service as copyright infringement. Canada risks a future where their cultural heritage becomes increasingly fragmented, inaccessible, and forgotten. Canada must move from an era of “fear of litigation” to an era of “public access,” and that transition begins with an amendment to the Copyright Act that puts the public interest on equal footing with intellectual property rights.