- Access Copyright License Agreement [exclusions list]
- Sample Letter of Permission for Use of Copyrighted Works
- CAUT Guidelines for the Use of Copyrighted Works
- Artists' Legal Outreach [a group of volunteer lawyers and law students committed to working with artists and arts organizations]
FAIR DEALING GUIDELINES
The fair dealing provision in the Copyright Act permits use of a copyright-protected work without permission from the copyright owner or the payment of copyright royalties. To qualify for fair dealing, two tests must be passed.
First, the “dealing” must be for a purpose stated in the Copyright Act: research, private study, criticism, review, news reporting, education, satire or parody. Educational use of a copyright-protected work passes the first test.
The second test is that the dealing must be “fair.” In landmark decisions in 2004 and in 2012, the Supreme Court of Canada provided guidance as to what this test means in educational institutions.
This Fair Dealing Policy applies fair dealing in non-profit universities and provides reasonable safeguards for the owners of copyright-protected works in accordance with the Copyright Act and the Supreme Court decisions.
- Teachers, instructors, professors and staff members in non-profit universities may communicate and reproduce, in paper or electronic form, short excerpts from a copyright-protected work for the purposes of research, private study, criticism, review, news reporting, education, satire or parody.
- Copying or communicating short excerpts from a copyright-protected work under this Fair Dealing Policy for the purpose of news reporting, criticism or review must mention the source and, if given in the source, the name of the author or creator of the work.
- A copy of a short excerpt from a copyright-protected work may be provided or communicated to each student enrolled in a class or course:
(a) as a class handout
(b) as a posting to a learning or course management system that is password protected or otherwise restricted to students of the university
(c) as part of a course pack
- A short excerpt means:
(a) up to 10% of a copyright-protected work (including a literary work, musical score, sound recording, and an audiovisual work)
(b) one chapter from a book
(c) a single article from a periodical
(d) an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart, and plan) from a copyright-protected work containing other artistic works
(e) an entire newspaper article or page
(f) an entire single poem or musical score from a copyright-protected work containing other poems or musical scores
(g) an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work provided that in each case, no more of the work is copied than is required in order to achieve the allowable purpose.
- Copying or communicating multiple short excerpts from the same copyright-protected work, with the intention of copying or communicating substantially the entire work, is prohibited.
- Copying or communicating that exceeds the limits in this Fair Dealing Policy may be referred to the University Librarian for evaluation. An evaluation of whether the proposed copying or communication is permitted under fair dealing will be made based on all relevant circumstances.
- Any fee charged by the university for communicating or copying a short excerpt from a copyright-protected work must be intended to cover only the costs of the university, including overhead costs.
What is copyright? What does it do?
In Canada, copyright is governed by the Copyright Act (R.S.C. 1985, c. C-42) which regulates the use and reproduction of intellectual and artistic creations. Copyright protects works from being copied, performed or distributed without the permission of the copyright holder, usually the author or the creator of the work, and provides exceptions for special circumstances.
What is "Public Domain?"
Works in the public domain are no longer protected by copyright. Generally, the work by a creator who has been deceased for 50 years or more goes in to the public domain. These works can be used freely by anyone for any purpose without paying royalties or getting permission to do so.
What is "Creative Commons?"
Creative Commons is a form of licensing that bridges the gap between "all rights reserved" copyright and the public domain. For more information see Creative Commons wiki: http://wiki.creativecommons.org/Main_Page.
What is "Open Access?"
Open Access is a growing movement in the scholarly community. As a publishing initiative, it provides free availability of scholarly publications, including peer-reviewed material. An excellent overview of Open Access is available from the MSVU Open Access Guide: http://libguides.msvu.ca/content.php?pid=92115&sid=686199.
What is "Fair Dealing?"
The Canadian Copyright Act defines fair dealing as the rights of an individual to use material with attribution for the purpose of research, private study, criticism, review, news reporting, education, satire or parody.
See the above Fair Dealing Guidelines to determine if the intended use may be considered "fair". The purpose of these guidelines is to identify specific “user rights” for instructors, staff, and students, to ensure that the University community is using copyrighted works within the framework established by the Copyright Act.
Do the fair dealing guidelines permit the making of multiple copies to hand out to students?
The Supreme Court of Canada has recently held that the making of multiple copies to hand out to students may be considered a Fair Dealing.
Fair dealing is an exception to the Copyright Act, which permits the use of less than substantial passages and quotations from material protected by copyright for the purpose of research, private study, criticism, review, news reporting, education, satire or parody.
The six criteria below are proposed by the Supreme Court of Canada to help determine if a use is "fair":
1. The purpose of the dealing: Is it for research, private study, criticism, review, news reporting, education, satire or parody? In a recent Supreme Court decision, the court determined that, "Teachers have no ulterior motive when providing copies to students. Nor can teachers be characterized as having the completely separate purpose of "instruction"; they are there to facilitate the students' research and private study. It seems to me to be axiomatic that most students lack the expertise to find or request the materials required for their own research and private study, and rely on the guidance of their teachers. They study what they are told to study, and the teacher's purpose in providing copies is to enable the students to have the material they need for the purpose of studying. The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study."
2. The character of the dealing: The court touches on two sub-criteria: the number of copies made and the existing custom and practice. Was a single copy made or were multiple copies made? Were copies distributed widely or to a limited group of people?
3. The amount of the dealing: How much of the work was used? What was the importance of the infringed work?
4. Alternatives to the dealing: Was a "non-copyrighted equivalent of the work" available to the user? For example, it is unfair to use a work if an equivalent non- copyrighted work would suffice. Could the work have been properly criticized without being copied? Was the dealing reasonably necessary to achieve the ultimate purpose?
5. The Nature of the work: How amenable is the work to fair dealing? If it was created and published with little or no motive of gain, like an academic journal, there is more likelihood that the use will be considered fair. It might, alternatively, be more difficult to argue fair dealing if one distributes a previously unpublished work or a work designated for a particular group, like a newsletter for a fee-paying clientele or group.
6. Impact of the dealing on the work: Is it likely to affect the market for the original work? The work used must not compete with the original copyrighted work. For example, it will tend to be unfair to use a work if its market value will be adversely affected.
Adapted from the University of Saskatchewan website. Licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada License.
How can I provide readings to my class?
Option 1) Printed Course Packs, instructors should use FedEx Office to make licensed copies for class distribution. The Academic Administration Office coordinates the production of printed Course Packs for distribution to students.
Option 2) Digital Course Collections can be made available on the University's Learning Management System (Moodle), if the copies fall under Fair Dealing, or comply with the Access Copyright license agreement, or when permission has been given by the copyright holder.
Can I place a required book or journal on library reserve?
Can I place copies of readings on library reserve?
Yes, but only if at least one of the following applies to the copies:
1) copies are made under the terms of Fair Dealing;
2) (or) copies are made under the terms of the Access Copyright license agreement;
3) (or) you have obtained permission and made arrangements with the rights holder of a required reading to place a copy on reserve for your class;
4) (or) the work you would like to make copies of are in the public domain;
5) (or) the original book / journal which contains the required readings for your students is placed on reserve. Students are legally able to make copies for their own use from the original source as long as they follow the fair dealing copying guidelines.
Can I obtain my own permissions?
Yes. A sample permission request letter is available at http://www.connect.ecuad.ca/copyright.
What are some other options for readings?
Faculty and instructors are encouraged to explore alternate sources for providing readings, in addition to fair dealing. The following are some additional options:
- Create online reading lists which incorporate web links or links to online articles and e-books licensed by Emily Carr University.
- Use reading materials in the public domain.
- Incorporate readings licensed through a Creative Commons license.
- Seek permission directly from the rights holder.
- Pay for a transactional license from Access Copyright (http://www.accesscopyright.ca/1484) or from the Copyright Clearance Center (http://www.copyright.com/content/cc3/en/toolbar/getPermission.html) for a specific use.
Can I upload a PDF of a journal article or other copyright-protected work to Moodle, or a Blog, or other Site?
Yes, you can do this for works that are copied under Fair Dealing, or under the terms of the Access Copyright license agreement, or in instances where you have direct permission, or in instances where you have confirmed that the source in question grants you the rights to do so. Note: when permission has been obtained to directly upload a document or PDF, the content must be posted in a password-protected environment that is only accessible to students registered in your course.
Can I provide my students with a link to an electronic journal article or e-book?
Yes. This is the recommended way to provide access to online resources and licensed content.
Can a copy be made where it is prohibited by the Fair Dealing Policy, but is expressly permitted under an agreement with the publisher or rights holder?
Yes. However, the reverse is not true. If a copy can be made under Fair Dealing, but is prohibited under an agreement with the publisher, the provisions of the agreement apply and making the copy is prohibited.
Can I scan an item and project it onto a screen in class, including copyrighted material such as images?
Yes, this is allowed under the exceptions for educational institutions in the Copyright Act:
Reproduction for instruction
29.4 (1) It is not an infringement of copyright for an educational institution or a person acting under its authority to:
(a) make a manual reproduction of a work onto a dry-erase board, flip chart or other similar surface intended for displaying handwritten material, or
(b) to make a copy of a work to be used to project an image of that copy using an overhead projector or similar device for the purposes of education or training on the premises of an educational institution.
Can I screen movies and videos in class?
You can show the following videorecordings in the classroom, under the strict condition that such use is for educational or training purposes, is not for profit, and that the screening takes place on the Emily Carr campus for an audience primarily comprised of students, faculty, or staff of the University:
- movies, films, or other cinematographic works, so long as the work has been legally obtained (ie. borrowed from the Library, or purchased), and that it is not an infringing copy or a recording that has had a digital lock broken. There is no longer the need to ensure a public performance license is in place.
- a video available on the Internet (ex. YouTube), so long as :
- no digital locks or copyright protection mechanisms have been broken in order to access the video;
- the source of the video is not infringing or making a video available without the copyright holders consent, and that there is no notice that prohibits the use of the video;
- you ensure that the source of the work, the creators, and rightsholders are clearly identified and credited;
Can I show a YouTube video in class?
Yes, see above. You may link to a YouTube video for classroom viewing, as this practice does not constitute making a copy. However, downloading a copy of a video for posting or distribution would be making a copy and would require permission. It is the faculty member's responsibility to ensure the legitimacy of YouTube videos before showing them in the classroom. YouTube videos and videos from other video sharing sites may contain content not uploaded by the copyright owner and use of these videos endorses copyright infringement, therefore, search for official versions of videos uploaded by the content creator.
Can I copy portions of materials for the purpose of creating tests and examinations?
Yes, this is allowed under the exceptions for educational institutions in the Copyright Act:
Reproduction for examinations, etc.
29.4 (2) It is not an infringement of copyright for an educational institution or a person acting under its authority to:
(a) reproduce, translate or perform in public on the premises of the educational institution, or
(b) communicate by telecommunication to the public situated on the premises of the educational institution a work or other subject-matter as required for a test or examination.
Can I e-mail copies of articles or digital files downloaded from a database like JSTOR, etc.?
No. The recommended practice is always to use a link to the article if it is available online. In most cases, journal articles, e-books, and licensed content in our online databases can also be linked to directly, either in an e-mail, in Moodle, etc.
Can I print materials from the Internet to hand out to my students in class?
Only within the limits of Fair Dealing. Internet materials are copyrighted and not in the public domain unless you have obtained permission from the copyright holder or they have given permission for that use (ex. Creative Commons license). Check the website for any restrictions. An preferred alternative to printing or copying the materials for your class is to post a link in an e-mail, in Moodle, or a Blog, for your students to access.
Can I make copies of all or part of a book that is no longer in print?
Yes, however, due diligence in obtaining permission from the publisher or rights holder would need to be undertaken first.