Copyright for MacEwan Faculty and Staff

What is copyright?

Copyright is literally the about the right to copy. It seeks to protect the right of 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. It is "fixation" that distinguishes between an expression and an idea. Copyright protects the expression of an idea, but not the idea itself. Copyright does not extend to ideas, facts or news.

The Copyright Act is the legal expression of copyright in Canada and seeks to balance the rights of copyright holders and users.

Who owns copyright?

The author of a work is usually the copyright owner. A copyright owner may assign or license 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.

What is fair dealing?

In the interests of balancing the rights of copyright holders and those of users, Canada, like other Commonwealth countries, has the concept of fair dealing. It is related to the U.S. concept of fair use but differs in significant ways. Fair use in the U. S. system remains a defence of copyright infringement and is a more open concept, with its limits defined by court cases. Fair use provides more opportunities (particularly for educational institutions) for using content without having to ask permission or pay royalties. In Canada, balance in copyright is provided by "exceptions" to the rights of copyright owners. Fair dealing exceptions are a right of users of copyright. Fair dealing is an exception to copyright and not an infringement of copyright.

The fair dealing exceptions in the Copyright Act state that copying for the purposes of research or private study, criticism or review and news reporting is not an infringement of copyright.

The Canadian Supreme Court ruling, CCH v. Law Society of Upper Canada, provided a significant clarification of the balance in Canadian copyright, emphasizing the need for a broad interpretation of the user exceptions in the Copyright Act. The ruling outlined the six primary criteria to be used to determine whether a use is infringement or fair dealing. The Wiki describes the ruling as follows:

In considering fair dealing it makes the following general observation: "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.'"

It then establishes six principal criteria for evaluating fair dealing.

1. The Purpose of the Dealing Is it for research, private study, criticism, review or news reporting? It expresses that "these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users' rights."
2. 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?
3. 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.
4. 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?
5. 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."
6. 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."

The Association of Universities and Colleges of Canada (AUCC), a well established lobbying group representing the educational sector in Canada is of the opinion that making a copy of the following for the purposes of private study and research is fair dealing:

• a periodical article of a scientific, technical or scholarly nature from a book or a periodical issue containing other works;
• a newspaper article or entry from an encyclopedia, annotated bibliography or similar reference work; or
• a short story, play, poem, or essay from a book or periodical containing other works.

The Association of Universities and Colleges of Canada (AUCC) believes that faculty members or students can make a copy of parts of a book or other complete works under fair dealing. The AUCC also maintains that fair dealing applies not just to photocopying but also to other methods of reproduction - including the making of copies onto slides, microfiche or transparencies. For multiple copies and for copying in excess of the extent mentioned above, AUCC recommends acquiring licences from Access Copyright, the Canadian Copyright Licensing Agency, one of the copyright licensing societies or copyright collectives in Canada. *

What is public domain?

Works that are in the public domain are all works that are not covered by copyright. It belongs to the public and there are no restrictions on its use. It most often applies to works on which copyright has expired. In Canada, the term of copyright is for the life of the author plus 50 years (ending on January 1 of the year following the 50 year period). Recently the term of copyright coverage in the US and most of Europe has been revised to life of the author plus 70 years. Keep this in mind when using US and European sources that claim ownership over works that are free to use in Canada.

As copyright law is national, a work that is protected in the US may be in the public domain in Canada. It can be used within Canada and is not infringement. An instance where this can be problematic is for content on websites. It may be legal to post public domain content for Canadian consumption, but if it is not yet in the public domain in other countries, the internet availability of the content in these countries can bring legal challenges. The public domain sheet music website in this case voluntarily shut down rather than pay legal costs, so there was not a definitive answer on the legality of such a site.

Authors may waive all or parts of their copyright. 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 license) the work may be used within the terms of the license.

See this list of public domain resources on the web.

What are copyright collectives?

In Canada, one method of administering the rights of copyright owners has been the formation of copyright collectives. These collectives often operate as the default representatives of copyright holders. So, with a collective such as Access Copyright or SOCAN (Society of Composers, Authors and Music Publishers of Canada), a copyright owner would have to opt-out or declare that their work is not covered by a collective. Collectives grant permissions and collect and distribute licensing fees on behalf of their members.

Collectives can provide an easier route for those seeking permission to use material, providing a "one-stop shop" for permissions. It should be mentioned that royalties can be higher when going through a collective than directly from a copyright holder. You can always go directly to a copyright holder to seek permission to use material, although they may direct you to the collective as their representative.

MacEwan maintains a license with Access Copyright that covers print based material and provides a convenient "pre-authorization" to use copyrighted works within the terms of the license. See the Copyright Guidelines for what may be copied under the license.

*Portions of this article were copied under the GNU Free Documentation License