Copyright & Fair Dealing

Copyright Basics

Copyright covers the copying or communication of a work or a substantial part of a work. Copyright is an exclusive right given to copyright holders to copy, manipulate, perform or communicate works (including their right to seek compensation for their efforts). In Canada, copyright automatically subsists in any original literary, dramatic, musical and artistic expression in fixed form, regardless of its merit. Performances are also protected. A performance does not have to be an artistic one, it can also be a speech or a lecture. It does not become a copyright issue until there is a fixation (such as a recording) or the performance is broadcast or live streamed over the web.

Tutorials

Copyright law in the common law tradition was created to promote the public interest. It seeks to promote creativity and the dissemination of knowledge. The Statute of Anne, passed by the British parliament in 1710, was the first copyright Act and sought the "Encouragement of Learning" through granting rights of copyright. The U.S. constitution instituted copyright “To promote the Progress of Science and useful Arts.” Thus, copyright law seeks to give creators sufficient control over their works, and the opportunity to gain from their works, to give incentive to the creative process and to the wide dissemination of works. These broader objectives of copyright law operate in the public interest and supercede any strictly economic conception of copyright as "intellectual property." This has been clearly reflected in the numerous copyright rulings from the Canadian Supreme Court over the last sixteen years.

Also in the public interest, the rights of creators in copyright is limited. Copyrighted works may sometimes be used without the need to ask permission or pay a royalty. One way the Copyright Act accomplishes this is to provide term limits on copyright. In Canada, in most cases, copyright expires 50 years after the death of the creator at which point their works enter the public domain. A second way this is accomplished is through fair dealing rights and exceptions for users of copyrighted works.

Who owns copyright?

The author of a work is usually the copyright owner. A copyright owner may assign or licence rights to a work. In the case of published works, copyright is often assigned to a publisher who then retains the copyright. When seeking permission to use a copyrighted work, keep in mind that the originating author may not be the rights holder.

Copyright is Automatic

In Canada, any original work or performance, regardless of its merit, is automatically protected by copyright once it is in a fixed form. You do not need to register a work in order for it to be protected, although you can still do so. Other means of protecting your work include the use of copyright notices and, for digital works, the application of technological protection measures (TPMs or digital locks) that restrict access or the ability to download or copy from a file.

A copyright owner who receives a request from someone wanting to copy, distribute or adapt their work may grant the request for free, for a fee, subject to certain conditions, or refuse the request altogether. Co-owners or co-creators of a work will need consent from each owner or creator before granting a request. If copyright to a work is owned by a publisher or other third party, refer the request to that copyright owner.

Originality

In Canada, copyright protects only original work. A work must originate from its author, be more than a copy of another work and involve skill and judgment in its creation, not just a trivial or mechanical compilation of data. Effort, or "sweat of the brow" alone in the compilation of a database, for example, does not provide sufficient grounds for copyright. A phonebook cannot be copyrighted, as it is a mechanical compilation of data.

Ideas, Facts and News are not Copyrightable

It is "fixation" that distinguishes between an expression and an idea. Copyright does not extend to ideas, facts or news. Copyright protects the expression of an idea, but not the idea itself. Copyright does not protect methods, plots, characters, titles, names, short phrases or slogans, although some of these may be protected through patents or trade-marks.

An Insubstantial Amount is not Covered by Copyright

The Copyright Act states that the creator of a work has the “sole right to produce or reproduce the work or any substantial part thereof.” This means that an insubstantial part of a work is not protected by copyright and users have the right to copy an insubstantial amount of copyright protected works. However, the Act does not define what is meant by insubstantial.

In a 2015 decision the Copyright Board of Canada provided quantitative guidance that can be used as a general guideline. The Board considered about 2.5% of the whole work or about 1 page of a 40 page document an insubstantial amount.

However, when determining substantiality the courts have considered both qualitative and quantitative factors. In Warman v. Fournier (2012) the court considered five factors:

  • the quality and quantity of the material taken;
  • the extent to which the respondent’s use adversely affects the applicant’s activities and diminishes the value of the applicant’s copyright;
  • whether the material taken is the proper subject-matter of a copyright; • whether the respondent intentionally appropriated the applicant’s work to save time and effort; and
  • whether the material taken is used in the same or a similar fashion as the applicant’s

Although the 2.5% guideline is useful, it should be noted that it is not the determinative factor when considering whether the substantiality threshold has been met. Moral rights The Copyright Act provides moral rights for creators. Moral rights protect the right of a creator to be identified as a work’s author and the right to remain anonymous or use a pseudonym. Moral rights protect the integrity of a work and the manner in which a work may be associated so as to prevent the work or the author from being affected prejudicially. While the copyright in a work may be licensed or assigned to another, moral rights can only be retained by the creator or waived completely.

Isn’t it Enough Just to Cite a Work?

Citing acknowledges the ideas of others and is required whether or not a work is in copyright. Citing avoids plagiarism, but is not a substitute for acquiring copyright permissions when needed.

What is Public Domain?

Works in the public domain are all works that are not covered by copyright. These works belongs to the public and there are no restrictions on their use. It most often applies to works on which copyright has expired. In Canada, the term of copyright is, in most instances, for the life of the creator plus 50 years (ending on January 1 of the year following the 50-year period). After that, works enter the public domain.

Copyright law is national. Works may be in the public domain in Canada, but not in other countries. In the late 1990s, the term of copyright coverage in the US and most of Europe was revised to life of the author plus 70 years. If a work is copied or used in Canada, the 50-year rule applies. Keep this in mind when using US and European sources that claim ownership over works that are free to use in Canada. If a work is to be used outside of Canada, the laws of the location it will be used apply.

Original editorial, annotative or translation work added to a public domain work may have its own copyright and could affect your ability to use it without permission.

The law regarding the jurisdiction over websites whose content may be accessed in multiple countries is not settled. This means that you should exercise caution in posting public domain works to publicly accessible websites when they can be accessed in countries where the works have not yet entered the public domain.

Authors may waive all or part of their copyrights. When an author has waived all rights, the work is in the public domain. When part rights have been waived (such as with a Creative Commons licence) the work may be used within the terms of the licence without having to seek permission.

The Canadian Public Domain Flowchart provides a guide to help determine if a work is in the public domain in Canada.

Exceptions to the “70 Year” Public Domain Rule

There are exceptions to the "life plus 70" rule for works by joint authors or unknown authors, unexploited works/posthumous works, government/Crown works, photographs, cinematographic works such as films and videos, sound recordings, performer's performances and communication signals.

a. Joint authors

A work enters the public domain 70 years after the last author dies.

b. Unknown authors

A work enters the public domain 50 years after it was first published OR 75 years after the work was created - whichever is earlier.

c. Unexploited works/Posthumous works

If a creator dies with an unexploited (unpublished) work, the work enters the public domain 50 years after the creator dies.

If the work was created before 1997, there are three possibilities:

  • If the creator dies, and the work is published prior to 1997, the work enters the public domain 50 years after the work was first published.
  • If the creator dies during the period of 50 years before 1997 and the work has not been published by 1997, the work enters the public domain in 2047.
  • If the creator died more than 50 years before 1997 and the work had not been published by 1997, the work is already in the public domain.

d. Government/Crown works

The work enters the public domain 50 years after it was first published.

An unpublished government/Crown work retains copyright in perpetuity.

Federal laws, decisions, and reasons for decisions of federal courts and administrative tribunals are immediately in the public domain. The copy must be accurate and must not be represented as the official version.

Please Note: The Government of Canada has declared that works under its copyright may be freely used for non-commercial purposes.

e. Photographs

Any photograph taken before 1948 is in the public domain.

The creator of a photograph is the one who owned the negative or original photograph at the time it was made.

If the creator of the photograph is a natural person, the photograph enters the public domain 50 years after the creator's death.

For a photograph taken after 1949, and before November 7, 2012, that entered the public domain before that date following these provisions:

  • If the creator of the photograph is a corporation in which the majority of voting shares are owned by the creator of the photograph (for example, a commissioned photograph), the work enters the public domain 50 years after the creator dies.
  • If the creator of the photograph is a corporation in which the majority of voting shares are not owned by the creator of the photograph (for example, a commissioned photograph), the work enters the public domain 50 years after the making of the initial negative or plate from which the photograph was derived or, if there is no negative or plate, the remainder of the initial photograph.
  • For a photograph that is not in the public domain by November 7, 2012:
  • The photograph will go into the public domain 50 years after the death of the photographer.
  • Photographs that entered the public domain before the above date will remain in the public domain.

f. Certain cinematographic works (films or videos, including home videos)

A cinematographic work which does not have an original arrangement, acting form or combination (such as a home video), and is published within 50 years of its making enters the public domain 50 years after the date of publication.

A cinematographic work which does not have an original arrangement, acting form or combination (such as a home video), and is not published within 50 years of its making enters the public domain 50 years after the date of its making.

Films and videos which have an original arrangement, acting form or combination enter the public domain 50 years after the death of the creator.

The rules for determining when a cinematographic work enters the public domain are complicated and depend on when the work was created (before or after 1994) and if the work has an original arrangement or not. See the National Archives of Canada's chart published in Staff Guide to Copyright (1999) for specific details.

g. Sound recordings

In June 2015, the Canadian term of copyright for sound recordings was extended from 50 years from when the recording was first fixed (or made) to 70 years from the date of first publication. A sound recording now enters the public domain 70 years after the recording is first published.

An unpublished sound recording continues to have a 50 year copyright term. If the sound recording is published before the end of that 50 years, the copyright term would be the shorter of 70 years from first publication or 100 years from first fixation.

Sound recordings that were in the public domain under the 50 year rule before June 23, 2015 remain in the public domain.

Music from the public domain can be recorded freely; the resultant recording would be copyrighted for 50 years.

While a sound recording may be in the public domain, the music itself (the rights for the composer, lyricist and music publisher) may not be in the public domain if the composer has not been deceased for 50 years.

h. Performer's performances

A performer's performance enters the public domain 50 years after the performance is first fixed or, if it is not fixed, 50 years after it is performed.

i. Communication signals

A communication signal enters the public domain 50 years after the signal was broadcast.

What is Fair Dealing?

Sometimes you can use works or parts of works without permission or payment of a royalty under the fair dealing provision of the Copyright Act.

Copyright exists to serve the public interest. In addition to providing exclusive rights to creators to encourage the creation and dissemination of works, copyright provides user rights as well. The fair dealing provision in the Copyright Act is the key mechanism to provide balance between creator and user rights.

The Copyright Act states that fair dealing for the purposes of research or private study, criticism, review, news reporting, education, parody and satire does not infringe copyright. If copying or communication is done for one of these purposes and qualifies as fair, it does not infringe copyright. The Copyright Act purposely refuses to set clear definitions of what constitutes fair dealing. This provides flexibility to adapt to many situations and new ways of accessing and using works.

Since 2004, however, the Supreme Court of Canada has issued a number of rulings that have helped clarify the meaning and reach of fair dealing. The key themes have been that the fair dealing purposes must not be interpreted restrictively and must be given a broad and liberal reading. Research, for example, need not be a traditional creative or scholarly endeavour, but can apply to someone copying content simply out of an interest in the subject matter. This means that fair dealing can be applied by all users and in many contexts.

Landmark decisions by the Supreme Court on a set of copyright cases as well as amendments to the Copyright Act in 2012 confirm that fair dealing applies broadly in the educational sector. The 2012 rulings reinforce the fair dealing approach first outlined by the court in the 2004 CCH decision and provide additional clarity and examples of how fair dealing may be applied. The result is to recognize that copies of copyrighted works provided for or communicated to students by a teacher or instructor can qualify under fair dealing. The court also addressed the issue of technological neutrality, stating that fair dealing applies equally to paper and digital content. In the educational context, this means that fair dealing copies may be distributed to students digitally, such as through mêskanâs and eReserves. This supports the use of new technologies and the Internet to communicate copies of works.

While these developments clearly support the educational use of works under fair dealing, it is not the intention of the fair dealing provisions to discourage the commercial production of learning materials and tools. Fair dealing does not apply if the copying or communication of a work significantly affects the market for a work. In order to ensure that works are used fairly, safeguards are applied. These can include limiting the portion copied from a single work or limiting the number of people included in a distribution of a work.

The six fair dealing criteria: CCH v. Law Society of Upper Canada

In 2004, the Canadian Supreme Court issued a landmark copyright decision, CCH v. Law Society of Upper Canada(2004)[1 S.C.R. 339], that provided a significant clarification of fair dealing. The court outlined six non-exhaustive criteria to assist in determining whether a use of (or dealing with) a work is fair. Each of the six criteria must be considered when making a fair dealing assessment and no one factor can be considered alone or is predominant in an assessment of fairness. The court has stated that the simple availablity of a work for sale or the availability of a licence does not automatically mean that a use will not qualify as fair dealing. The ruling states:

It is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively. ... 'User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.

The ruling outlined six principle criteria for evaluating fair dealing:

  • The Purpose of the Dealing Is it for research, private study, criticism, review, news reporting, education, parody or satire? It expresses that "these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users' rights."
  • The Character of the Dealing How were the works dealt with? Was there a single copy or were multiple copies made? Were these copies distributed widely or to a limited group of people? Was the copy destroyed after its purpose was accomplished? What are the normal practices of the industry?
  • The Amount of the Dealing How much of the work was used? What was the importance of the infringed work? Quoting trivial amounts may alone sufficiently establish fair dealing. In some cases even quoting the entire work may be fair dealing.
  • Alternatives to the Dealing Was a "non-copyrighted equivalent of the work" available to the user? Could the work have been properly criticized without being copied?
  • The Nature of the Work Copying from a work that has never been published could be more fair than from a published work "in that its reproduction with acknowledgement could lead to a wider public dissemination of the work - one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair."
  • Effect of the Dealing on the Work Is it likely to affect the market of the original work? "Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair." A statement that a dealing infringes may not be sufficient, but evidence will often be required.

These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing. In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair.

MacEwan University Fair Dealing Guidelines

The MacEwan University Fair Dealing Guidelines provide guidance on the copying and communication by faculty and staff of copyright-protected works for students. These Guidelines give faculty and staff clear options to provide course materials and remain compliant with copyright law.

More information

The Copyright Act provides exceptions to copyright in particular circumstances and for specific user groups. These add to, rather than replace, the fair dealing provision. That means that if a copyrighted work qualifies for use under fair dealing, you would not need to look to an exception or consider restrictions associated with an exception. If, however, a given use does not qualify when applying the fair dealing criteria, an exception may provide options.

Among the exceptions are those for educational institutions, libraries, archives, museums and persons with disabilities.

Use of works on the premises of an educational institution

These exceptions apply to educational institutions and those acting under their authority. Use is restricted to the premises of the educational institution (including online lessons - described below) and must be for an educational purpose without a motive of gain, except for the recovery of costs, including overhead costs. The source of the works used should be a legal one.

The education exceptions in the Act allow:
  • The copying of copyrighted content for the purpose of display, such as in the classroom or in a lesson. This ranges from manually copying content onto a white board to digitizing content for display (including in a PowerPoint). If the content is available commercially in a medium that is made for the purpose of in-class display, then this must be purchased or alternate content used
  • The use of copyrighted content in tests or examinations. Again, if the content is available commercially in a medium made for the purpose of a test or examination, then that would need to be purchased or alternate content used
  • The playing of video works.
  • The playing of sound recordings.
  • The live performance of works where the performers are primarily students for an audience primarily made up of students and staff of the university. The performance may include sound recordings as well.
  • The performance of a live radio or television broadcast at the time of its broadcast.
  • The recording of television and radio broadcasts at the time of their broadcast to be shown in class at a later time.  
Communicating lessons by telecommunication (digital distribution)

Section 30.01 allows the educational exceptions for presentations and performances above to apply online. This provision is intended to remove barriers to the use of content in online education and give equal access to classroom content for online students.

In many cases you will be able to rely on fair dealing as the basis for providing most commonly used classroom content instead of using an exception, in class or online (see the MacEwan University Fair Dealing Guidelines for details). Due to the conditions of this exception, it is recommended that you review your options under the Guidelines first before seeking to provide content under this provision.

MacEwan Library provides a streaming video and audio service based on this exception that fulfills the conditions listed below. Faculty can submit requests to have all or part of a video and audio work made available and streamed in mêskanâs under these conditions:

  • Content must be provided in the form of a lesson. This could be a live virtual classroom session or content that forms part of a lesson posted in mêskanâs and eReserves.
  • Reasonable technical protection measures (TPMs) must be used to help limit access to and communication of the lesson to students in the class.
  • The lesson must be destroyed by the institution 30 days after the final course evaluations.
  • Students must destroy any copies of the lesson they have made 30 days after the final course evaluations.
  • You cannot break a technical protection measure (TPM or "digital lock") on a digital work - for example, breaking a lock in order to extract the digital data to create a streaming copy or a clip of a video or audio work.
Use of works available through the internet (the internet exception)

The Copyright Act allows the reproduction, performance and communication (such as through mêskanâs) of works from the Internet by faculty and staff of the university for an audience that consists primarily of students or staff of the university. A citation of the source needs be provided as well as the name of the author, performer, maker or broadcaster.

  • This exception applies to freely available Internet content.
  • This exception does not apply if you know or should have known that the work was posted without the consent of the copyright owner.
  • A website or individual work that has a technological protection measure (or "digital lock") that restricts access or is behind a paywall may not be used under the exception.
  • Websites or individual works that have a clearly visible notice that specifically disallows educational use would not be able to be used.
  • Standard copyright or terms of use notices on web pages do not restrict your ability to use content under the exception.
  • Websites that require you to click to agree to terms and conditions prior to giving you access to content may restrict your ability to use the content under the exception. Check the terms and conditions.
  • Do not post content used under the exception to public websites. The exception allows distribution to an audience that is primarily students and staff of the university. Class handouts, posts to mêskaâs or inclusion in coursepack would all qualify.
Non-commercial user generated content

The use of copyright-protected works in a new original copyright-protected work created by an individual, solely for non-commercial purposes, does not infringe copyright. The new work can be disseminated to the public without infringing copyright. The exception applies as long as certain conditions are met:

  • the source is mentioned, if it is reasonable to do so - including the author, performer, maker or broadcaster.
  • the source is (or there is reasonable grounds to believe it is) a non-infringing copy.
  • the use of the work does not have a substantial adverse effect, financial or otherwise, on the existing work - including that the new work does not replace the existing work.

This exception allows for uses of copyright-protected works in a new context. It is commonly described as the "mashup" or "YouTube" provision as it allows an individual to use samples of copyrighted audio and video in a home video and then post it to the open web without infringing copyright. The provision is not specific to audio and video, however. The provision is open ended enough that it could apply in any situation where works are used by an individual in a new work for non-commercial purposes. Students can benefit from this provision as they are able to post multimedia assignments that incorporate copyrighted works to the web.

Persons with perceptual disabilities

The conversion of a work to a format suitable for the needs of an individual with a perceptual disability is allowed under the Copyright Act and may be made without permission. This exception does not apply if the work is available commercially in an appropriate format. The facilitation of this by staff of an educational institution is fair dealing. This exception does not extend to video works or the creation of large-print works in paper format.

The new Copyright Act provision prohibiting breaking of technical protection measures on digital content (the "digital locks" provision) does not apply to persons with perceptual disabilities or those acting on their behalf to create an alternate format copy of a work.

Libraries, archives, and museums

The Copyright Act provides specific exceptions for libraries, archives and museums. Under this exception, a university library may:

  • make a copy for the purposes of cataloguing, internal record keeping or for insurance purposes or police investigation.
  • make a copy for the purposes of restoration.
  • use digital technology to deliver an inter-library loan copy of a copyright-protected work.

Provided a replacement copy is not commercially available in a medium and of a quality that is appropriate for these purposes, a university library may also:

  • make a copy of a work "if the original is rare or unpublished and is deteriorating, damaged or lost."
  • make a copy of a fragile document or recording for on-site consultation if the original cannot be viewed, handled or listened to, because of its condition.
  • make a copy if the original is in an obsolete format, or is in danger of becoming obsolete, or the technology to use the original is unavailable, obsolete or is becoming obsolete.

Technical protection measures

The Copyright Act includes a new provision that disallows the circumvention of a technical protection measure (TPM or "digital lock") on digital content. Digital locks commonly restrict access to content or control the ability to copy a digital work. This provision disallows breaking access controls on digital works. This most often applies to video (such as DVD and Blu-Ray), but may also apply to digital files, website content and works such as eBooks. The rule appears to apply even if you otherwise have a right to use the work. For example, you could not break an access lock on a DVD to create clips to show in class or post to mêskanâs.

MacEwan Library provides a streaming video and audio service that is compliant with the above anticircumvention rule. Faculty can select material to be made available to their class.

It may also be possible to get permission to break a TPM. Contact the MacEwan Copyright Office to start a permission request.

This provision does not apply to format shifting from media (such as a CD) to a device or from one device to another as long as you own the devices and the originating work is a legal copy that you own.

What is the Notice to Notice system?

In 2015, the federal government established the "Notice and Notice" regime to help combat copyright infringement online. Copyright owners (or their appointed representative) can send a "notice of claimed infringement" email to an Internet provider when their copyrighted work is shared on the Internet or posted on a website without permission.

Internet service providers (ISPs) and Internet network intermediaries (such as MacEwan University) are required by law to forward notices that they receive when they are able to determine which account was associated with the Internet protocol (IP) address at the date and time indicated in the notice. The law requires this data to be retained to assist in identifying users, but no information is released without a court order.

ISPs and Internet network administrators merely forward these notices and do not endorse or support the allegations contained in them.

The Notice and Notice system is in contrast to the "Notice and Takedown" system in the United States that requires ISPs to immediately remove content or shut down site pages if a claim of infringement is received.

What does it mean if I receive a notice?

It means that the copyright owner or their representative has identified questionable internet traffic that has been associated with your account. Simply receiving a notice does not mean that you are guilty of any wrongdoing or will be sued. A copyright holder can requests this information in the process of pursuing a copyright infringement suit. In Canada, the maximum statutory penalty for non-commercial infringement is $5000.

Do I need to contact the sender or pay a claim asked for in a notice?

There is no obligation to respond to the notice. The sender does not know who you are and would not know unless they formally apply to a court to have these details provided. MacEwan University respects your privacy and does not provide such information unless ordered to do so by a court. It remains a possibility that the copyright owner could pursue legal action at a later date, but this has proven to be rare.

There is certainly no obligation or requirement to pay any "settlement offer" or any other claim that may be contained in the notice you receive.

What are the notices for?

The notice acts a warning that Internet activity is monitored and a reminder that there may be consequences for illegal activity. The intention is to see a reduction of piracy and illegal posts, with or without the notices leading to a copyright lawsuit.

The university does not condone illegal uploading or downloading of copyrighted material. Illegal and unethical use of computing privileges contravenes the MacEwan University Information and Technology Services (ITS) Terms of Use.

Things to keep in mind:

MacEwan University has not told the sender who you are. We respect your privacy and would only reveal your identity if ordered to do so by a court.

MacEwan University does not verify the contents of the notice and does not endorse or support the allegations contained in the notice.

Receiving a notice does not mean that you have infringed or that you will be sued for infringement.

The notice is not a legal ruling and you are under no obligation to respond to the letter or to pay any settlement offer or claim contained in the letter.

U.S. copyright fines and penalties do not apply in Canada.

The maximum statutory penalty for non-commercial infringement in Canada is $5000.

More information

The Government of Canada Office of Consumer Affairs (OCA) provides excellent information here:

Notice and Notice Regime