Ekphrasis ¹ is used to identify the phenomenon of the integration of one creative work into another creative work, such as when a painting or musical theme becomes what amounts to a character in a novel. An example of this would be the poem written by Mikhail Kuzmin about a wood block print created by Hokusai that can be found on the Dalhousie Electronic Text Centre web site ². At that site, as well as the poem (in Russian and an English translation), are a digitized reproduction of a print of the woodcut, and a copy of a poem by Amy Lowell, inspired by the same woodcut. Other notes about the Kuzmin poem are proposed for that site. The potential for this type of presentation is exciting to many academics (and others) but they should be concerned about potential copyright difficulties and other legal issues that were not a problem when such compilations could not be made.

The following is an attempt to provide a short guide to the legal responsibilities towards copyright held by other people when creating such a work, as well as the rights accruing to the creator of such a work. This is not in any way intended to replace proper legal advice but rather to provide some idea of when formal legal advice is warranted. The narrative background and explanations are complemented by a checklist style guide and a list of resources.

Copyright in Canada is based on the Copyright Act ³. Canada is a signatory to the Berne Convention ⁴, the Universal Copyright Convention ⁵, and the Rome Convention ⁶. The first two deal with more traditional copyright rights and the Rome Convention covers such things as performers' and broadcasters' rights. To be covered by copyright protection, a work must be original in that it cannot be a copy. It does not have to meet any literary or artistic standards of originality. Nor is the creator required to register their claim for copyright protection although it may sometimes be advantageous to do so. Copyright covers " ...every original literary, dramatic, musical and artistic work ..." ⁷ produced by citizens, residents, or subjects of any Treaty country (Berne, UCC, or WTO) . It protects "..the sole right to reproduce ... , to perform ... , to publish ..." and that includes the rights to translate the work into another language, to make a dramatic work from a novel, to make a sound recording or movie of a dramatic work or novel, or to present at public exhibition an artistic work ⁸. The term of a copyright is normally the life of the author plus fifty years ⁹ but this will vary depending on whether the work is anonymous, a photographic work, a cinematographic work or if the copyright is held by a Canadian government (federal or provincial).

There are provisions for " fair dealing" in Section 29 of the Act which permit limited use for educational and research purposes but publication on a web site without permission would not normally be considered such use, as it would tend to diminish the author's right to benefit economically from their creation. These economic rights that accrue to authors may be assigned or licensed by an author to another ¹⁰. The Act also sets up a regulatory regime with a Copyright Office where copyright claims may be registered, a Copyright Board that drafts and administers regulations and a process for copyright collectives to be established under the Act that can act on behalf of creators' particularly in the establishment and operation of royalty regimes. Creators are also entitled to moral rights that protect the attribution, integrity, and association of the work. The classic Canadian case dealing with moral rights to the integrity of the work was a suit brought by Michael Snow when the Eaton Centre in Toronto adorned his sculpture of flying geese with red ribbons for Christmas. The ribbons were removed ¹¹.

Any work in any format should be considered as protected by copyright unless there is good evidence to the contrary. This could mean many items that would not in common understanding qualify as "original" or "creative". Items that should be considered as protected by copyright include diagrams, charts, lecture notes or course outlines, tables of data, other compilations, sheet music, and any graphic item ¹². Authors are inherently entitled to copyright protection and if they publish that work on an Internet site it does not mean that they are relinquishing those rights unless there is an explicit statement to that effect.

Authors are not required to provide a written notice that rights are retained nor are they required to use some symbolic indication such as the copyright symbol used in the US ((c)) to retain their rights. It is not acceptable to copy material on the assumption that such copying is to the author's benefit. It is not acceptable to make a translation or adaptation of a work without permission. It is not acceptable to publish an edited or altered version of a work without permission. It is not acceptable to make a recording of an oral reading of a work available on a web site. Protection under "fair dealing" (Canada) or "fair use" (US) cannot be assumed just because the site is for "academic" or "research" purposes and no economic benefit will accrue to the posters. Beware following an American precedent in parody because the US courts are more accepting of uses of an original work for the purposes of parody than are Canadian courts.

The Internet makes the creation of a multimedia work available to many who would never have considered such an undertaking in the past. It may include some original work by the creator of the site as well as other authors' original works. That covers text, images of any kind (static or moving) and any sound recording or depiction of music such as a musical score sheet. Such a compilation should be carefully constructed and relevant permissions acquired to ensure that it does not infringe the copyright of any and all of the components. This can be complex and case law is still forming on some of these issues and typically it is US case law where "fair use" provisions are broader than in Canada. One source of help in this arena are the copyright collectives covered later.

Normal academic practice requires appropriate attribution and citation for referenced works. This will carry over to the new medium. However, the way in which those attributions are formed may cause problems. How hypertext links are made to other documents and files is important. And what is wise from the perspective of not infringing copyright may not meet traditional academic standards for attribution.

In addition, there are the questions of how to protect author's rights to the work created and how to enforce those rights internationally.

Hypertext links allow direct connections to primary source material, supplementary material and illustrative examples. They can be used to help elucidate an argument or illustrate an idea. However, each such link requires proper attribution. How this is done is important. Formal academic citations (as in the footnotes to this paper) which include full attribution and the complete URL of the site being linked to, should not pose problems. Problems can arise when an identifying phrase or graphic is used for the link. In these cases, the other site's URL is hidden in the HTML code and is not obvious to the user. That user may not be aware that the material presented as a result of clicking on the graphic is housed on another site altogether. The impression may be given that the linked material is part of the original site or that it is owned by the original site. Web sites should be designed so that such misapprehensions do not arise.

The general rule that seems to be developing is that "deep" links into another web site are unacceptable without their permission. The danger is that a deep link may seem to imply that the material is being provided by the linking site and not the site where the material actually resides. Simply, it is often safer to link to a page on the other web site that provides the final link to the file rather than the file proper. This is particularly true if the final file is a specialty format such as Adobe Acrobat (.pdf) files, music files, or graphic files. Linking to a simple html page may not be as hazardous because they tend to have embedded in them the information that the web site owner may want displayed such as trademarks, advertising material, and the like. However, if there are any concerns it is wiser to err on the side of caution. Recognise too that the other web site may not have acceptable permission to use the material posted there and it is possible that a deep link might involve the linking site in an infringement suit by the author ¹³. This caveat applies to any links created.

A recent situation reported in the New York Times Cyber Law Journal ¹⁴ describes how an Ottawa web site producer (Bazinet) was targeted by Universal Pictures for what they considered unacceptable links on his web site. Bazinet had links to movie trailers available on the Universal site and others, all of which are legitimately distributing the trailers. But Bazinet's links were directly to the trailer file rather than to the page on the Universal site that provided the link to that file. Universal said: "You are not permitted to link to other sites that contain our copyrighted material without our authorization." This case has not gone to court as Bazinet complied with the demands of Universal Pictures and was permitted to link to pages that referred users to the actual trailer files. Universal Pictures were then content that any users of Bazinet's links understood that they were using a Universal Pictures site for the actual downloads. The article quotes several legal experts as to the lack of legal guidance on deep linking and very different opinions on what should be legal.

All of the above may make acceptable academic attribution a little more challenging than usual. If links must be made only to the home page of a web site (unusual in practice but will depend on the web site) and the reference is buried several "clicks" down, proper attribution could become lengthy. Many web sites where material is posted have clear statements about what they will regard as acceptable use. Check carefully for such statements and follow them carefully. If there are not such statements, there will usually be an e-mail address that allows contact with the author or electronic journal publisher to enquire about what they deem acceptable practice and to request permission ¹⁵.

A common web site device is to use frames to structure the information provided. With this technique, the browser can be set to display new html pages in one frame of a previously loaded page. This too can easily lead to the impression that the new material is resident on the original site or that it belongs to the original site. By contrast, the Kuzmin site mentioned earlier, uses a table structure to display the Kuzmin Collection information in parallel with information about the Electronic Text Centre. The difference between the two techniques can be seen when a link is clicked: with framing, typically only the target frame will load, while with a table, a completely new page will load, which may or may not include the ETC information.

Copyright holders are expressing concern that framing their work constitutes a violation. The most well known case involved CNN suing a web site that framed content from the CNN site. That suit was settled so there was no judgement but the infringer agreed to stop using frames and to use instead only text based links ¹⁶. This case suggests that when linking to another site, it is probably best not to use frames around material from another site. This will avoid any confusion about the source of the item to which you have referred and will not imply a relationship between your site and the other site that does not exist. Tables are a safer way to display material where there is a need or desire to control the formatting in this manner. Alternatively, frames can be used but only if the frames disappear once the user clicks to an off-site URL ¹⁷.

Following these recommendations (and those in the section on linking) would also help avoid legal action brought under the laws of unfair competition. Essentially, it is illegal to compete unfairly in the market place by passing off your goods or services as those of another. While the main focus of this paper is copyright issues, the following section addresses briefly some other issues that may arise in the creation of a complex web site including trade mark violation and unfair competition.

It is possible to make it appear as if material on another site is actually on a different site using certain programming facilities. This is called "inlining". Clearly this would usually be a copyright infringement unless there was permission to do so. If copyright infringement was not a problem, unfair competition (passing off) could well be a problem. Such techniques should be avoided unless appropriate permissions are obtained.

Mirroring another site is usually done through a cooperative agreement between the two sites to provide better service to customers in the event of problems at one site. Needless to say, this should only be done with proper legal advice because the mirror site will be just as liable for copyright infringement or other legal liabilities as the original site ¹⁸.

Material is often found at web sites that provide graphics and the like as some variant of freeware or shareware. This does not necessarily mean that the material can be used indiscriminately. Frequently there are restrictions on how the material may be used. The terms of the provider's distribution notice should be adhered to ¹⁹.

Material moves on the web. A link that is valid today may not be tomorrow. This is one reason why the Canadian Department of Justice is now providing federal statutes with a "stable URL" such as that used in the citation to the Canadian Copyright Act. This is an operational rather than legal reason to provide links to higher pages rather than deep links to specific files but is another reason to avoid deep links.

Meta tags "count". Even if the material is not displayed to a casual browser, if there is material in the "head" of your html document, that too should not infringe on intellectual property rights ²⁰. The most common infringement encountered with meta tags tends to be the unauthorized use of trade marks rather than copyright infringement. Such unauthorized use of trade marks can be grounds for legal action for unfair competition or dilution of the mark. These other aspects of intellectual property law (trade marks, patents, and unfair competition) are beyond the scope of this paper and fortunately are more likely to be of concern to a commercial web site than an academic site ²¹. However, creators of multi-media web sites should ensure that they respect all forms of intellectual property rights.

Once items are identified for the proposed site that will require copyright clearance, the administrative hurdles begin. Copyright clearinghouses are cooperative organizations of copyright holders that act as central administrative points for facilitating proper use of copyright materials. Through these organizations, it is possible to arrange for a licence to use materials without necessarily having to track down the current holder of the copyright or deal directly with that holder. The catch is that there are frequently several such organizations in any country and not all creators are registered with their national body. In Canada these groups are authorized under the Copyright Act and are regulated by the Copyright Board of Canada ²². A recent check of the Board's site showed more than 30 entries although at least SOCAN ²³ was listed twice under different categories.

Copyright clearinghouses such as CANCOPY can be of assistance in obtaining permission to use copyrighted material ²⁴. CANCOPY is now providing a service to assist users of copyright material in acquiring the necessary clearances to use digitized material. It should be recognised that any clearance obtained through these organizations may require the payment of licence or royalty fees. CANCOPY can also arrange for licencing through their reciprocal arrangements with similar organizations in other countries. They will also endeavour to obtain a licence to copy on your behalf for works by "unlocatable authors". This is arranged through the Copyright Board which is the final authority as it has statutory authority to authorize licences to copy published works where the copyright holder is unknown or impossible to find. The process is time consuming as the Board will need to ascertain that all reasonable efforts have been made to locate the author before it will issue such a licence. If this sounds too good to be true, in practice it is just that. CANCOPY is normally limited to dealing with material similar to that for which it represents creators in Canada, which means that it won't be any use for an audio clip nor probably for photographs or other non-textual material. Not all of its reciprocal arrangements permit digitization arrangements, although many permit photocopying. SOCAN deals with performances of music including broadcast performances and broadcasts of recorded performances unless they qualify under dramatic copyright as does some opera. Web site creators need to know that following a recent ruling by the Canadian Copyright Board, transmitting a piece of music across the Internet qualifies as broadcasting or "communicating by telecommunications under the Act" ²⁵. Clearing copyright permissions for a complex multimedia creation will not be simple nor will it be quick. As rights organizations and creators become more familiar with them, digitized rights should become more readily available.

An international association of clearinghouse societies exists: the International Federation of Reproduction Rights Organizations (IFRRO ²⁶). On their web site they have a listing of full members of the Federation and various associate members and organizations with observer status ²⁷. It provides full contact information for the organizations and various standard information about classes of rights holders served and what types of material is covered among others. This would be a good place to start if there is any concern about ensuring copyright clearance in a particular foreign country. Of particular relevance to the Kuzmin project, they have contact information for the Russian Writers' Federation and CANCOPY does not appear to have any reciprocal agreements with Russian organizations. Lastly, there is an organization devoted to making museum collections available on the Internet that may be of help if a particular piece of artwork is needed, the Museum Digital Library Collection ²⁸.

The global reach of the Internet has many implications for unwary publishers. Copyright law whether governed by the Berne or the UCC or the Rome Convention varies significantly from country to country. Many countries are not yet signatories to these conventions or have not yet implemented the requirements of the conventions ²⁹. Obtaining appropriate permission in Canada may not protect against charges of copyright infringement in another jurisdiction. Terms of copyright protection may vary from the Berne minimum of life of author plus fifty years or the UCC minimum of life of author plus twenty five years.

This may be of particular concern to academics who are in the habit of spending significant periods of time in a foreign country conducting research or who may have purchased property or have other assets in a foreign country. While the copyright collectives and licensing processes described above should meet most legal obligations to other creators within Canada, this is not a guarantee. If the proposed web site contains material that might constitute copyright infringement in such a foreign country, it would be advisable to obtain specific legal advice on the ramifications of posting such material. A creator in that country, if not satisfied that proper arrangements have been made, may sue for copyright infringement and the poster's assets in that country be put at risk. Defending against such a suit would likely be difficult and expensive. If there were no assets in the foreign country at risk, any judgements there would require application to a Canadian court for enforcement here.

Until such a time as there is an international clearinghouse where a potential user can go to arrange for permission or licence to use a copyrighted work, obtaining such permissions will be complex and time consuming. Preparation for such efforts should begin early in the planning process for a digital text publication to ensure that all permissions are in place before the site goes live or the creators of the site should be prepared to omit questionable material if permissions have not been obtained.

The other aspect to protecting the work is the requirement to protect whatever rights may exist in the work created. Material that is original, such as new translations, editorial notes, commentaries, and the like should be identified and the copyright claimant identified. The site should have a statement of intellectual property rights management, explaining to potential users of the site what rights are claimed, what use may be made of the site, and how to contact the author(s) both electronically and by traditional means. It may be wise to register the material with the Copyright Registrar at Industry Canada and become a member of a creators' organization or clearinghouse.

The latter advice is because of the ubiquity of the Internet. It is impossible for individual creators to police the Internet and the rest of the publishing world for infringement of their work. Such protection should cover all the different types of original material on the site: ordinary text, images, recordings of music, and anything else that might be covered. This may again mean dealing with many organizations often the same ones that handle licencing permissions. This may all seem too onerous but because digital material may be easily and perfectly copied it is at more risk of infringement than more traditional media. Additionally, digitized files are easily modified so that identifying information can be removed or the material changed in such a way as to distort the message and cause the creator embarrassment, concern, or legal problems. What was a perfectly innocuous piece of text at one site could be made defamatory very easily on another site and the perpetrator not easily identified or held accountable. Even if the original creator can demonstrate that they were not responsible for the defamatory material, their reputation could be damaged. Having the original clearly and unequivocally recorded may provide some protection.

There are increasing numbers of technological approaches to the problem of protecting copyright material from unauthorized use. One that is not as secure as many suppose is the Adobe Acrobat Portable Document Format (.pdf files). The files can be edited with the correct software.

A technology that is becoming better known is the digital watermark ³⁰. This technology puts digital information into a digital file such that the pattern of the added information can be easily detected and traced and attempts to remove the markings will be obvious in the modified file. Its strength is that it can be applied to text, audio and video. It is said to be able to survive many and varied transformations and processes such as digital-to-analogue-to-digital, printing, compression and even photocopying of a printed copy. Just like a watermark in paper, even if some of the watermark is lost, because it is a digital representation of analogue data, the original watermark can usually still be discerned. Unlike paper watermarks, the digital watermark can be uniquely created to identify each individual copy created, making identification of infringements more practicable.

Digital watermarks have the advantage that they do not run afoul of government regulations against the export of powerful cryptographic tools. However, it is possible to use encryption to protect copyrighted work although that would seem to obviate the purpose of creating digital texts. Typically this method is used by software companies ³¹. Many university libraries use a password protection scheme to limit access to electronic reserve collections to comply with their licensing arrangements with the copyright holders. This may be an option if the creator does not want unrestricted access to their material.

Another approach is the <indecs> initiative ³². To quote from their Overview: "<indecs> is an international collaborative project which seeks to develop a framework of metadata standards to support network commerce in intellectual property. It began in November 1998 and will end in its present form in March 2000." This framework would be compatible with other metadata initiatives such as the Dublin Core Project ³³ which seeks to provide a "simple content description for electronic resources". <indecs> is working with many other organizations involved in the protection of intellectual property rights on the Internet and in electronic commerce generally and a useful list can be found on their <connections> link.

The Imprimatur Project ³⁴ has attempted to incorporate digital watermarking technology with a business trading model to create an electronic copyright management system. It is based on software and consensus between the parties (creators, publishers, libraries, and others). The intention is to develop an international framework for the management of intellectual property rights with appropriate standards to prevent the development of non-communicating islands of rights protections. Trials on their intellectual property rights server have included digital purchase and payment schemes. They aim to address key issues such as the use of encryption to prevent eavesdropping on transmissions and transactions, watermarking for identification of rights owners, providing primary access through browsing and permitting downloading, and permitting manipulation of the files after acquisition. It is too early for this project to provide an immediate solution but it may be important in the future.

Digital text initiatives are an exciting avenue for humanists but the hurdles to successful completion of the projects are many and some are exceedingly difficult. Creators of such web sites must be conscious that they are publishing the material on their web site just as publicly and even more internationally than if it was to be in a book published by a major publishing house. Ordinary academics and other scholars do not usually have the legal advisors of major publishing houses or the resources to fight a legal challenge of their web site. Caution and attention to homework should be the watchword. Careful planning and an adequate lead time are essential.