- Which copyright laws and agreements apply to me?
To determine whether your desired use of a work is permissible, you need to consider whether the use is in compliance with a license covering the work in question if one exists, or the Copyright Act. The Copyright Permissions Flow Chart provides guidance on the questions you need to ask and answer. If your desired use of a copyright-protected work is substantial and is not covered by any agreement, license, or the Copyright Act, you’ll need to obtain permission for what you want to do from the copyright owner.
- What does copyright cover?
Copyright protects tangible expressions of original ideas in the form of literary, artistic, dramatic, or musical works, as well as other subject-matter comprising sound recordings, performers' performances, and communication signals. This encompasses a wide range of material that includes books, newspaper and journal articles, photographs, charts, paintings, CDs, DVDs, software, databases, websites, live and recorded performances of works, and televised programs.
A work protected by copyright may be published or unpublished, and may exist in any physical format that is fixed or tangible. Note that only original expressions of ideas are protected by copyright, not ideas or concepts alone. This means, for example, that while an original book, painting, film, or song may be protected by copyright, the titles of such works are not. Note also that the Copyright Act defines copyright in relation to a work as the sole rights to produce or reproduce, perform in public or publish "the work or any substantial part thereof."
- When does copyright protection begin?
Copyright protection exists automatically when an original work is created. In general, copyright protection in Canada continues for 50 years after the end of the calendar year of the creator’s death, although some exceptions may apply. When you want to use a particular work in Canada, a reasonable approach is to assume that the work is protected by copyright unless there is a clear indication to the contrary, or the creator's death occurred at least 50 years ago.
- How long does copyright last?
The duration of copyright varies across different countries. Although copyright in Canada generally lasts for the life of the creator plus 50 years after the end of the calendar year of his or her death, copyright duration in other countries may be longer (e.g., in the United States and Europe, copyright generally lasts for the life of the creator plus 70 years). In addition, some exceptions may apply that are dependent on factors such as the type of work, and whether the work is individually or jointly created. The copyright durations specified in the Copyright Act apply to all works used in Canada, including those created in countries other than Canada.
- What rights do copyright owners and users have?
The Copyright Act gives copyright owners a set of rights pertaining to their original works that includes the rights to copy and translate their works, and to authorize such acts by others. Copyright owners' rights are qualified by exceptions that balance their interests with the public interest. The exceptions to copyright infringement in the Copyright Act permit certain limited uses of copyright works without copyright owner permission. Some exceptions are available to all users and cover specific purposes that include research, private study, and education, while the availability of others is limited to specific categories of users such as educational institutions.
- What is fair dealing?
Fair dealing is an exception to copyright infringement that permits you to use a substantial part of a work without seeking the copyright owner's permission if i) your purpose is research, private study, criticism, review, news reporting, education, parody, or satire, and ii) your use of the work is fair. Because "substantial part" and "fair dealing" are not defined in the Copyright Act, determination of whether a substantial part of a work has been used, and whether a use of a work is fair will always depend on the specific facts relevant to the use.
The Suprreme Court of Canada1 has described what a "substantial part" of a work is in the following way:
A substantial part of a work is a flexible notion. It is a matter of fact and degree. 'Whether a part is substantial must be decided by its quality rather than by its quantity.' . . . As a general proposition, a substantial part of a work is a part of the work that represents a substantial portion of the author's skill and judgment expressed therein.
Assessing Fair Dealing
To determine if a particular dealing with a work is likely to be fair, the Supreme Court of Canada2 provided the following two-part analysis framework that considers qualitative and quantitative factors.
- Is the use for a purpose enumerated in the Copyright Act's fair dealing provision?
- If a fair dealing purpose applies, is the dealing, on the whole, fair based on factors such as
- purpose: what is the ultimate purpose of the intended end-user? what is the real motive for copying? is the purpose commercial or non-commercial?
- character: are single or multiple copies made? is the copying distributed widely or narrowly? what is the customary copying practice in the trade or industry?
- amount: is the whole work copied or just a (substantial) part?
- alternatives: could a non-copyrighted equivalent be used to achieve the same ultimate purpose?
- nature of the work: is the work confidential? if unpublished and not confidential, is there a public interest in disseminating the work more widely?
- effect: will the copy or copies likely compete with the original work?
It is not necessary for your use to meet every one of these factors in order to be fair, and no single factor is determinative in itself. In assessing whether your dealing with a work is fair, you should look at the factors as a whole to determine if, on balance, the dealing is fair.
Also keep in mind that fair dealing is format neutral. The Supreme Court of Canada has recently reaffirmed the principle of "technological neutrality" which "seeks to have the Copyright Act applied in a way that operates consistently, regardless of the form of media involved, or its technological sophistication" (SOCAN v. Bell, 2012 SCC 36).
The University's Guidelines for Copying under Fair Dealing provides a basic guide to copying that is likely to qualify as fair dealing as well as copying that is not allowed under fair dealing. For more guidance on how to apply the fair dealing factors to your particular circumstances, please contact the University Copyright Advisor.
1Cinar Corporation v. Robinson, 2013 SCCC 73.
2CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13.
- Can fair dealing cover teaching?
Yes. As of November 7, 2012, when the majority of Bill C-11 amendments came into force, education is a fair dealing purpose enumerated in the Copyright Act along with research, private study, criticism, review, news reporting, parody, and satire. Whether a particular dealing with a work is fair should be determined by applying the six-factor fair dealing framework proposed by the Supreme Court of Canada.
As the Copyright Act does not mention "teaching," prior to November 7, 2012, the potentially applicable fair dealing purposes relating to copying of works for use in instructional settings were criticism and review. Note that fair dealing for the purposes of criticism or review requires you to mention the author (if provided) and source of the work in order to be considered fair dealing.
The Supreme Court of Canada's July 12, 2012, affirmative decision on "whether photocopies made by teachers to distribute to students as part of class instruction can qualify as fair dealing under the Copyright Act" (2012 SCC 37, para1) is particularly notable. The decision took into account the six fair dealing factors laid out in a previous Supreme Court of Canada decision (2004 SCC 13). For U of L instructors this means that copying short excerpts for distribution to students as class handouts may qualify as fair dealing if the copying, on balance, is fair according to the six factors. Consult the University's Guidelines for Copying under Fair Dealing or contact the University Copyright Advisor for assistance in assessing whether fair dealing applies to the copies you wish to make.
- What is the public domain?
The public domain is the realm of ideas and works that are free for everyone to use, remix, and disseminate as they wish. In the public domain are works in which copyright has expired or has never subsisted, or works for which copyright owners have made a clear declaration that copyright will not be asserted. For example, consider the works authored by William Shakespeare about 400 years ago when copyright law did not exist. Today his original works are in the public domain, which means anyone may use or copy those works without permission. At the same time, many published editions of Shakespeare's works contain added original materials authored in recent times by other individuals (such as footnotes, prefaces, critical essays), which are protected by copyright because the authors used skill and judgment in creating the new material. This creates new copyright in the added original material, but not in the underlying text of the original works.
See the Canadian Public Domain Flowchart produced by Creative Commons Canada for an overview of the numerous factors applicable to the determination of whether a work used in Canada is in the public domain. For a similarly complex overview of the public domain within the context of United States copyright law, see Copyright Term and the Public Domain in the United States provided by P.B. Hirtle at Cornell University's Copyright Information Center.
- Are Canadian government publications protected by copyright?
Yes, section 12 of the Copyright Act states that copyright in Canadian federal government publications belongs to the Crown for a period that lasts for a period of 50 years following the end of the calendar year of publication. Prior to November 18, 2013, permission was generally not required for copying of Crown copyright-protected works for personal, public non-commercial, or cost-recovery purposes.
However, as of November 18, 2013, Publishing and Depository Services no longer administers Crown copyright and licensing. When needed, Crown copyright clearance must be sought from the appropriate department or agency. Some departments, such as Industry Canada, do not require permission to copy their publications "for personal or public non-commercial purposes, or for cost-recovery purposes . . . unless otherwise specified in the material."
- How does copyright work internationally?
Although there are no international copyright laws, copyright is recognized internationally thanks to international conventions and treaties that individual countries may choose to sign. In general, your copyright will be protected in other countries that have signed applicable international conventions or treaties. Note, however, that the specific protections your copyright work will receive for its use in another country depends on that country's copyright laws. If you’re concerned about someone’s use of your work outside of Canada, you will need to check the relevant jurisdiction’s copyright laws to confirm whether infringement of your copyright has taken place.
- Are American and Canadian copyright laws the same?
The copyright laws of the United States and Canada are in general not the same. For example, the provision known as "fair use" in United States copyright law is wider in scope than "fair dealing" in the Canadian Copyright Act. United States copyright law provides that "the fair use of a copyrighted work, including such use by reproduction . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." In contrast, the "fair dealing" exception in the Canadian Copyright Act covers only purposes of research, private study, criticism, review, news reporting, education, parody, and satire, subject to certain conditions. The location of use determines the rules which apply. If you are from the United States or are collaborating with an American researcher, you should keep in mind that the rules that apply to the copyright material you intend to use or create in Canada may differ depending on where you want to use them.
- How do I get permission to use a copyright work?
Is your desired use permitted by an open access license, a Library license covering a subscribed electronic resource database, or one of the exceptions to copyright infringement? If the desired use is not covered by a license or statutory provision, you will need to contact the copyright owner for permission. The first step is to identify who the copyright owner is and whether there is an organization that represents the owner. There are copyright collectives that may be able to give you permission to use a work in the form of a license on behalf of the copyright owner. For example, if you want to use music that isn't covered by a license or the statutory exceptions to copyright infringement, you can seek permission through copyright collectives such as the Society of Composers, Authors and Music Publishers of Canada (SOCAN), Canadian Musical Reproduction Rights Agency (CMRRA), or Re:Sound Music Licensing Company (Re:Sound) that administer copyright in music.
But if the copyright owner is easily identifiable and locatable, it may be easier to contact him or her directly as copyright owners will sometimes give permission to academic users without requiring payment. You can usually identify the copyright owner somewhere on the work by looking for the copyright symbol ©, which should have the copyright owner’s name next to it. You’ll often find this at the beginning of a book, at the side of a photograph, or at the bottom of a webpage. Once you’ve located the owner, you can send an email or letter requesting permission for your use and explaining how and why you want to use the work. Written rather than verbal permission is preferable; an e-mail should suffice. It’s also a good idea to retain a record of who gave the permission and when, what was permitted, any conditions or limitations on your use, and how to contact the person who gave the permission.
- What are moral rights?
Moral rights are additional rights specified in the Copyright Act held by creators of literary, dramatic, musical, and artistic works. Moral rights protect the integrity of a work and the reputation of its creator. The right of integrity is the right not to have a work modified or associated with goods or services in a way that is prejudicial to the creator’s reputation. The right of attribution is the right always to be identified as the creator of a work or to remain anonymous. These rights prohibit any prejudicial changes to a creator's original work, and ensure that the creator receives appropriate recognition for his or her work. Moral rights in a work have the same duration as copyright, but may not be assigned to someone else.
- Who owns the copyright in works I produce at the University?
Agreements covering who owns the copyright and who can use original works created by members of the University of Lethbridge Faculty Association (ULFA) are set out in Article 29 and Schedule E of the Faculty Handbook, and in Article 18 and Schedule D of the Sessional Handbook. In general, copyright in original works created by ULFA members in the course of employment are retained by the members, although exceptions may apply if a member is specifically instructed to create a work as part of his or her assigned duties. For more information about ownership and use of copyright works created by ULFA members, please contact the Chair of the ULFA Handbooks Committee. It is worth noting that although in most cases copyright initially belongs to the creator of a work (who may subsequently sell or license ownership of certain rights to others), there are exceptions to this general rule.
- What is the User-Generated Content exception??
Amendments to the Copyright Act in 2012 included a new users' right applicable to non-commercial user-generated content (UGC). Section 29.21 of the Act provides that it is not an infringement of copyright if an individual uses a published or publicly available copyrighted work in the creation of a new copyrighted UGC work and then uses the UGC work or authorizes an intermediary to disseminate it as long as:
In this provision, "use" means to do anything that a copyright owner has the sole right to do under the Act, other than the right to authorize anything.
- use of the UGC work or its dissemination by an intermediary is solely for non-commercial purposes,
- the source of the pre-existing work is mentioned if reasonable to do so,
- the individual reasonably believes the pre-existing work to be non-infringing,
- use or dissemination of the new UGC work does not have a substantial adverse effect on the actual or potential exploitation of, or market for, the pre-existing workng, and
- the new UGC work is not a substitute for the pre-existing work.