Copyright

Learning Commons - Library: Copyright Resource Handout has some links to copyright resources.

What's new in copyright?

You can reproduce a work, or do any other necessary act, in order to display it (unless the work is commercially available in the Canadian market within a reasonable time and for a reasonable price and may be located with reasonable effort, in a medium that is appropriate for education or training purposes).

You can play a film or other cinematographic work in the classroom, as long as such work is not an infringing copy and was legally obtained. An electronically-delivered class is considered to be on College premises.  Note that viewing a film applies only to showing it, not copying.

You can reproduce, communicate by telecommunication and perform for students, legitimately posted works that are available through the Internet, provided that the source and author are attributed, unless:

·        the works are protected by digital locks;

·        a clearly visible notice (and not merely the copyright symbol alone) prohibiting such act is posted on the website or on the work itself; or

·        the educational institution knows or should have known that the works are available on the Internet in violation of the copyright owner's rights (e.g. it was obtained from a torrent site).

Educational institutions using news and commentary under the educational exception do not have to pay royalties, destroy copies of news or commentary programs after one year, or keep records of the copies made of news or commentary programs.

Providing a link is not copying, but you must make sure the material is not from an infringing site.

An educational institution or a person acting under its authority for the purposes of education or training may communicate lessons (including tests or exams) via telecommunication and distance learning to students enrolled in the course and record such lessons.  The student can also make a copy of such telecommunicated lesson to be viewed or listened to at a later time, provided that:

  • the student and the institution must destroy the recording or copy within 30 days after receipt by students of their final course evaluations;
  • the institution must take measures (e.g. installing digital locks) to limit the audience to students only, and to protect the lesson itself

It is important to note that the recordings cannot be sold or distributed widely (beyond the audience of students enrolled in the class).

Technological protection measure (also known as digital locks) are defined under two categories:

  • any effective technology, device or component that controls access to a work (access control), and
  • any effective technology, device or component that restricts one from exercising the exclusive rights of a copyright owner or remuneration rights, i.e. that control the reproduction or copying of a work (copying control).

Bill C-42 prohibits the circumvention of any access control installed on a work, performer's performance fixed in a sound recording or a sound recording, even if the work subject to the digital lock is legally acquired.

The digital lock prohibitions in the Act could potentially "trump" or prevail over various exceptions in the Copyright Act, e.g. the fair dealing or educational exceptions.

Section 29.21 of the Copyright Act creates a new exception (the "mash-up exception") for content generated by non-commercial uses to allow a consumer the right to use, for non-commercial purposes, a published work to create a new work.  This exception is subject to conditions (e.g. identification of the source and author, legality of the original work or the copy used, absence of a substantial adverse effect on the exploitation of the original work).  For example, a consumer could splice scenes from videos and movie trailers to create a fan-made trailer or video.

Fair dealing is a long-standing feature of Canadian copyright law that permits certain uses of copyright material in ways that do not unduly threaten the interests of copyright owners, but which could have significant social benefits - but only if they are fair.

Fair dealing is not a blank cheque. Formerly, fair dealing in Canada was limited to five purposes: research, private study, news reporting, criticism, and review. To recognize the important societal benefits of education, parody, and satire, Bill C-42 added these three elements as new purposes to which fair dealing applies.

Fair dealing criteria

1.     The Purpose of the Dealing

Is it for research, private study, criticism, review, news reporting, education, parody or satire?

2.     The Character of the Dealing

Number and distribution of copies. The creation of a single copy or of limited copies for a defined audience is more likely to be fair. Indiscriminately making and distributing multiple copies of a work is less likely to be fair. Password protected sites limit distribution and favour fair dealing over more widely available sources.

3.     The Amount of the Dealing

Portion of the work copied. Copying an insubstantial amount of a work is always permissible under the Copyright Act. Copying a substantial part of a work or an entire work may or may not be fair depending on the circumstances (including the purpose of the use).

4. Alternatives to the Dealing.  Was a "non-copyrighted equivalent of the work" available to the user?

5. The Nature of the Work. 

Amenability to fair dealing. An academic article - published to disseminate ideas, often with no motive of direct financial gain - may favour a fair dealing analysis of its use. If a work has not been published, the dealing may be fairer in that its reproduction with acknowledgment could lead to a wider public dissemination of the work - one of the goals of copyright law.

6. Effect of the Dealing on the Work. 

If copying a work is likely to compete with the market for the original work, this may suggest that the dealing is not fair.



It is not necessary that all six factors be satisfied. The relevance of each factor depends on the context. Sometimes, certain factors will be much more significant than the others. Occasionally other factors, beyond these six, may be relevant.

User rights generally rely on multiple factors.

In order to qualify for most of the educational exceptions in the Act, the following conditions must generally be met:

·        the activity must be for purposes of education or training; and

·        the activity must take place on the premises of the College (including any place controlled by the College, where training is provided, controlled or supervised by it).

While much of what transpires in an educational setting at the College may well qualify as fair dealing, there is not - and cannot be - any presumption that this is the case in all circumstances.

Course Materials and Course Website

In general, you must seek permission from the copyright owner before copying materials and including them in your course packs, handing them out to your students during class or posting them to your course website unless one of the following is true:

·         the work is in the public domain, meaning that the author has been dead for more than 50 years;

·         the College has a licence, directly from the copyright owner to reproduce the material;

·         the material is licensed for use in this manner by a Creative Commons licence or some other form of public licence;

·         the copyright owner has made the material available under an open source agreement that permits reproduction of this type;

·         the use qualifies as "fair dealing", meaning that it is both for an allowable purpose (research, private study, education, parody, satire, criticism, review, or news reporting) and is substantively "fair", including that any mandatory citation requirements have been satisfied; or

·         the use is subject to a specific exception in the Copyright Act.

As long as you own the copyright in the materials you have written, you may copy the materials and include them in your course pack, distribute them to your class and/or post them on your course website. If you are a faculty member, and your work has been published, be sure to check the terms of your publishing agreement; if you have assigned the copyright in your work to the publisher, or if you have granted an exclusive licence in the work, you may need to seek permission from the publisher to copy and distribute it even though you are the author. Also, if you wrote the article in collaboration with someone else, you will need to seek permission from your co-authors before copying or posting it.

Yes, as long as you obtain permission from the owners of copyright in any third-party content. This includes permission from any guest lecturer or student for the reproduction and making available of their work. You may want to create a second version of your lecture slides (and ask the same of any guest lecturer or student) that do not include the copyright-protected material. In specific cases, the use of third-party materials may qualify as fair dealing for education, in which case no permission will be required. However, that is to be determined on a case-by-case basis, in light of the CCH factors (sections 52-60); consult the Fair Dealing Guidelines for more information.

The general "fair dealing" exceptions under the Copyright Act permit certain uses of copyright-protected material for purposes of research, private study, education, satire, parody, criticism, review or news reporting. "Education" was added as an allowable purpose only recently, when the Act was amended, so its practical scope is not yet known but it clearly expands permitted uses. Remember to follow the sequence set out in the College's Fair Dealing Guidelines - if a licence or other permission is available it will not be necessary to engage in the complicated fair dealing analysis.

Reproducing material for educational purposes does not automatically qualify as fair dealing. In order for your use to qualify, it must be both for an allowable purpose (a relatively low threshold in the educational context) and substantively "fair." To determine whether your dealing is fair, keep in mind the six factors from the CCH case (sections 52-60), and the College's Fair Dealing Guidelines. Bear in mind that the Fair Dealing Guidelines are not intended to be applied in an automatic or mechanical fashion. The copying limitations set out in the Guidelines should be considered to be reasonable guidance for many situations, rather than rules.

Finally, keep in mind that the U.S. "fair use" exception to copyright infringement is different from the Canadian fair dealing exception. It should not be relied on when determining whether your actions are acceptable.

The following exceptions are set out explicitly in the Copyright Act. You can do the following things on the premises of the College, for not-for-profit educational or training purposes, without first obtaining permission from the copyright owner:

1. Make a copy of, or post on your course website, material posted on the Internet (so long as you mention the source of the material and, if given in the source, the name of the author of the material) unless:

  • there is a clearly visible notice on the material you want to use, or on the website to which the material is posted (often located within the website's terms and conditions of use at the bottom of the webpage), prohibiting the use of the material for this purpose;

  • the work, or the website on which it is posted, is protected by a technological protection measure that restricts access or copying, such that you would have to break a digital lock to use the work; or

  • you know or should have known that the material was made available through the Internet without the consent of the copyright owner (for example, because you acquired it from an unauthorized file-sharing or streaming site).

2. Post to your course website (accessible only by students enrolled in the course or other people specifically authorized by the College) any audio or video recording of a lecture that includes the material in question.

If the material is available online, you may post it on your website, provided that:

  • only College students and faculty are able to access the website;

  • the source of the work (and, if given in the source, the names of any applicable authors, performance, sound recording makers, and broadcasters) is mentioned;

  • you do not have reason to believe that the copy of the material is an infringing copy or that its use is prohibited by the copyright owner;

  • you did not break a digital lock to gain access to the copy.


Proceed with caution when accessing materials through file-sharing sites or streaming services like YouTube, since copies posted on these sites are very often infringing.

If the material is not available online, you need to make sure that you have permission from the copyright owners of any music or films that appear on your website. As with any content, permission generally needs to be obtained from all applicable owners of copyright. In the case of music and video content, this may include a producer or distributor (in the case of a film or TV show), a record label (in the case of a sound recording or music video) and/or a music publisher (in the case of any song - even where permission is obtained from a record label to use the sound recording or music video in which it appears).

Yes, but proceed with caution. Although providing a hyperlink to another website does not necessarily constitute copyright infringement, it is possible that linking to infringing content may itself infringe copyright. Further, many websites contain terms and conditions of use that prohibit third parties from linking to them. Before linking to any website, check its terms and conditions carefully to ensure that you are not breaching them by providing a link. Also be careful that the linked website does not contain defamatory material, as providing the hyperlink (accompanied by words of recommendation to view the material) could amount to defamation.

There are two ways to make class readings available to students on your course page. You can:

  • ask the Public Services Librarian to add permanent links to items in your required reading lists.

Lectures, Tests and Examinations

Yes. You may make a handwritten copy of copyright-protected material in order to display it.

Yes. You may make a non-manual copy of copyright-protected material in order to display it, unless the material is commercially available - i.e., available on the Canadian market within a reasonable time and at a reasonable price - in which case a licence needs to be obtained.

Yes. In accordance with the exceptions in the Copyright Act, you do not need to seek permission to play a song or an audiovisual work, for educational purposes, to an audience consisting primarily of College students and located on the premises of the College. Bear in mind, however, that this exception applies only to playing the song or film/TV show; you are not allowed to copy the material without permission, and the applicable exception requires that you not have reasonable grounds to believe that the work is an infringing copy. Therefore, the material must be obtained lawfully - either purchased commercially, licensed from an authorized source or obtained through the Internet in accordance with the guidelines set out in the previous question.

Yes. Whether the program is broadcast on radio or television or streamed via the Internet, you may play it in class at the same time as it is transmitted to the public without seeking permission.

Sometimes, if you're diligent. Certain news programs (but not other programs) may be copied and performed in public without payment to the copyright owner or any collective society.

Under the Copyright Act, you are entitled to make copies of news and news commentary programs - excluding documentaries - and show them during your lectures.

For programs other than news and news commentary (such as sitcoms or movies shown on TV), royalties must be paid, or permission granted by the copyright owner, before showing them in class. You can make a recording and use it strictly for evaluative purposes - i.e., to determine whether or not you want to show it in class - for up to 30 days, but a licence must be obtained before it is shown to any audience. After 30 days, the copy must be destroyed or royalties are required to be paid.

Please make sure to maintain careful records detailing when copies of broadcast programs are made, performed in public, and destroyed. Also, please note that none of the above exceptions to infringement applies where the copy of the broadcast was received by unlawful means. For example, it would be a copyright infringement to show any program - even a news or news commentary program - that was copied from an illegal satellite transmission or an unauthorized Internet streaming site.

Yes. Go to Learning Commons in Lac La Biche or Cold Lake to locate materials purchased by the College. You may also look through the video collections available to the College community (1) purchased online video collection; (2) Internet Archive; and (3) CBC Digital Archives. For more information contact the Public Services Librarian, at library@portagecollege.ca.

Yes, subject to any terms and conditions governing the use of the content on the website. Make sure to check the website's terms and conditions before showing the website to your class. Also, if you have reason to believe that the material is infringing someone's copyright, do not show it to your class. For example, do not play a clip of a film downloaded from an illegal file-sharing website, and use caution when accessing material from user-driven streaming sites like YouTube.

8. Are students allowed to perform a song or a play during a lecture?

Yes. College students may publicly perform a song, play, or other "work" on the premises of the College for educational purposes as long as the audience consists primarily of College students or instructors.

9. Do I need to obtain permission to record student performances...

... from the student performers themselves?

Yes. Every performer has a copyright in his or her performance, including the sole right to "fix it in any material form." While the exception described in the answer to the previous question provides the College with the right to have College students perform live music (under certain circumstances), it does not permit the performance to be recorded. Therefore, permission must be obtained from the performer. One way to do this is to include in the course syllabus a statement that, by taking the particular course, the student provides the College with consent to record any student performances.

... from the composer(s) and/or author(s) of the work?

Yes, at least in theory. Under section 3(1)(d) of the Copyright Act, the composer of a musical work or the author of a literary or dramatic work has the sole right to make a sound recording or cinematograph film of the work that is being performed. As with a performer's performance, the exception described in the answer to the previous question allows for the performance of the work only, not the recording of it. In practice, however, a licence is rarely obtained to make an initial recording of a work; the licence is generally obtained only if and when the maker of the recording wishes to exploit it in public, whether or not for commercial gain.

Obviously, no permission is required to reproduce a work that is in the public domain, but caution must be exercised here as well, since it is not unusual for copyright to subsist in a newer arrangement of an older work that has fallen into the public domain.

... from the conductor or director of the performance?

Probably. Although the issue has never come up in Canada, there is authority in other Commonwealth countries to suggest that a conductor is to be considered a "performer" for copyright purposes, thus triggering the same rights enjoyed by the other performers (see above).


10. Do I need to seek permission for the materials I incorporate into my lecture slides?

If you display your lecture slides only during your class, you are allowed to incorporate copyright material into them without obtaining permission. The Copyright Act provides for a limited exception that applies to the display of these materials, for educational purposes, on the premises of the College.

However, if you make copies of your lecture slides to distribute to your students or post online, you may need to obtain permission to use any copyrighted material, subject to the exceptions set out above in connection with course materials (e.g., material that is available online). The "display" exception does not extend to the distribution of printed copies. While it is possible that this use may be fair dealing, that has not been determined conclusively and needs to be assessed on a case-by-case basis. Check the Fair Dealing Guidelines for more information.

To avoid copyright infringement, some instructors make two versions of their lecture slides - one for use in class only, in which they can incorporate graphics, photos, images, excerpts from literary works and other materials that are subject to copyright, and another to hand out to their students, from which they have removed any material that belongs to third parties.

11. I often use copyright-protected materials in the classroom - I use graphics in my PowerPoint slides, show excerpts from movies, and play recorded music. Can I make audio or video recordings of my lectures and make them available on my course website?

Yes, as long as you:

·         ensure that the website is available only to students enrolled in your course or to other people specifically authorized by the College;

·         destroy any fixation of the lecture within 30 days after the students in the course have received their final evaluations; and

·         take measures that can reasonably be expected to ensure that the lecture is accessed only by students in your course (or other persons acting under the College's authority) and that students cannot reproduce or transmit the lecture other than as permitted in the Copyright Act - in practice, to other students in the same course.

12. What can I include in an exam or test without seeking permission?

You may do the following acts:

·         make a copy of or translate a work (unless the material is commercially available - i.e., available on the Canadian market within a reasonable time and at a reasonable price - in which case a licence needs to be obtained); and

·         publicly perform a work (i.e., play a song or movie) or play a radio, television or Internet broadcast.

You can use the material in the same way as you would in an in-class exam, as long as you:

·         ensure that the exam is available only to students enrolled in your course or to other people specifically authorized by the College;

·         destroy any fixation of the exam within 30 days after the students in the course have received their final evaluations; and

·         take measures that can reasonably be expected to ensure that the exam is accessed only by students in your course (or other persons acting under the College's authority) and that students cannot reproduce or transmit the exam other than as permitted in the Copyright Act - in practice, to other students in the same course.

Government Publications

1. Do I need to obtain permission before using materials created or published by the government?

The Crown - that is, the federal or provincial government, as applicable - owns the copyright in all works prepared or published by any government department, indefinitely if the work is unpublished and, if the work is published, for a period of 50 years following the end of the first year of publication.

You do not need to obtain permission to copy government works for non-commercial purposes, including education, as long as you comply with the following requirements:

·         Exercise due diligence to ensure the accuracy of the materials reproduced;

·         Indicate both the complete title of the work reproduced and the author organization; and

·         Indicate that the reproduction is a copy of an official work that is published by the government of the particular jurisdiction and that the reproduction has not been produced in affiliation with, or with the endorsement of that government.

If you want to revise, adapt or translate government works, you must first obtain permission. Please contact the Public Services Librarian at library@portagecollege.ca for assistance.

Research

1. From a copyright perspective, does it make any difference whether I am teaching or conducting research?

Yes. Research, whether conducted by faculty or by students, falls directly within the "fair dealing" exception mentioned above. Therefore, as long as the dealing is qualitatively "fair," a case-by-case question to be determined by applying the six fair dealing factors, the exception should apply to permit the reproduction of a protected work without the permission of the copyright owner.

2. Does it matter whether or not the research is published?

When research leads to a published article or other work, it is not entirely clear whether the work will continue to be considered fair dealing for "research" or whether another allowable purpose - either criticism or review - will need to be relied upon instead. As a result, it is extremely important, both in your own writing and in that of your students, to observe proper citation practices.

Quite apart from issues of academic honesty, failure to acknowledge all sources relied upon could result in copyright infringement. To fall within the "fair dealing" exception for criticism or review, a work must mention the source (i.e., the publisher) of each work quoted or paraphrased, along with the author of each such work (if mentioned in the published work consulted). So, for example, while quoting substantial portions of a novel in a critical essay may qualify as fair dealing for "criticism or review", the exception will not be available unless the source is properly acknowledged. Similarly, where audiovisual works are used for criticism or review, both the performers and the maker of the sound recording must be named, if their names are given in the source work.

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