Copyright Basics for Instructors
A brief summary of the Copyright Act of Canada (the Act) as it relates to instruction at Queen's University.
The Copyright Act of Canada (the Act) describes what works are protected by copyright and the limitations on reproducing a copyrighted work in Canada. Copyright subsists in every original literary, dramatic, musical, and artistic work provided that certain conditions are met. Copyright also subsists in performers’ performances, sound recordings and broadcast signals. Works include a wide variety of materials, including books, posters, sound recordings, websites, databases, and internet videos. Most materials used in a classroom are protected under the Act and very few original works do not attract copyright.
Copyright comprises a bundle of exclusive rights owned by the copyright holder. In a university setting, the most pertinent rights are the right to reproduce the copyright-protected work and the right to communicate the work to the public by telecommunication. The latter right is important in relation to the transmission of digital copies of works by email or over the Internet.
In general terms, with the exception of performers’ performances, sound recordings and broadcast signals, the term of copyright lasts for the life of the author and a period of 50 years from the end of the year in which the author died (s. 6). For a sound recording and a broadcast signal the term is 50 years from the end of the year in which the recording was made or the signal was broadcast. For sound recordings published before that 50 year period expires, the term is extended to the end of the year 50 years after publication.
Once the term of copyright has expired a work becomes part of the public domain and the work can be used, e.g., reproduced or communicated, without permission.
It is an infringement of copyright to copy all or any substantial part of a copyright-protected work or to communicate all or any substantial part of a copyright-protected work to the public by telecommunication without the permission of the copyright holder, unless copying or communicating the work falls within one of the exemptions in the Act.
A copyright symbol © is not necessary for a work to be protected under the Act. Protection is automatic upon completion of a work. There is, however, an optional registration service offered through the Canadian Intellectual Property Office
There are several definitions or exemptions in the Act that have an impact on the way educators can use copyrighted works. They include:
According to Section 3 of the Act, a user cannot copy a substantial portion of a work. The Act does not define “substantial part”. In determining what constitutes a substantial part the courts have focused on the quality of what was taken from the original work rather than the quantity that was taken. As a result, no quantitative percentage of a work can be used to determine what constitutes a substantial part of a work. In general, reproducing a few sentences from a periodical article or book as a quotation is not a reproduction of a substantial part of the work. It is not an infringement of copyright if only an insubstantial part of a copyright-protected work is reproduced or communicated, e.g. in a thesis or periodical article.
The fair dealing provision in the Act permits use of a copyright-protected work without permission from the copyright owner or the payment of copyright royalties.
This exception provides that fair dealing with a copyright-protected work for one of the following eight purposes: research, private study, criticism, review, news reporting, education, satire, or parody, does not infringe copyright. Any fair dealing for the purpose of news reporting, criticism or review must however mention the source and, if given in the source, the name of the author or creator of the work. To fall within the fair dealing exemption, a dealing, e.g., copying or communicating a work, must be for one of the eight purposes and also must be fair. In landmark decisions in 2004 and in 2012, the Supreme Court of Canada has considered the following factors in determining whether a dealing is fair: (CCH v. Upper Canada Law Society and Alberta v. Canadian Copyright Licensing Agency).
These criteria are:
- the purpose of the proposed copying, including whether it is for research, private study, review, criticism or news reporting
- the character of the proposed copying, including whether it involves single or multiple copies, and whether the copy is destroyed after it is used for its specific intended purpose
- the amount or proportion of the work which is proposed to be copied and the importance of that work
- alternatives to copying the work, including whether there is a non-copyrighted equivalent available
- the nature of the work, including whether it is published or unpublished
- the effect of the copying on the work, including whether the copy will compete with the commercial market of the original work
Applying fair dealing
Fair dealing can be used to make short excerpts of copyrighted materials available to your students. Queen's has adopted the Fair Dealing Policy to provide guidance to faculty members, instructors and staff members on when copying and communicating a copyright-protected work would fall within the fair dealing exemption. The policy permits faculty members, instructors, and staff members to copy and communicate, in paper or electronic form, short excerpts from copyright-protected works for any of the eight fair dealing purposes. The most important purposes for the university are research, private study and education.
The Fair Dealing Policy defines a short excerpt as follows:
- up to 10% of a copyright-protected work (including a literary work, musical score, sound recording, and an audiovisual work)
- one chapter from a book
- a single article from a periodical
- an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart, and plan) from a copyright-protected work containing other artistic works
- an entire newspaper article or page
- an entire single poem or musical score from a copyright-protected work containing other poems or musical scores
- 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.
When considering copying or communicating a short excerpt under the Fair Dealing Policy, the most advantageous of sections 4(a) through (g) may be selected. For example, if one chapter of a book is more than 10% of the book, the one chapter may be copied under the Fair Dealing Policy. If more than one figure is selected for copying, the number of figures selected that may be copied under the Fair Dealing Policy cannot exceed 10% of the book. For example, if a book is 200 pages long, up to 20 pages may be copied under the Fair Dealing Policy.
The Fair Dealing Policy does not apply to students except to the extent that a student is an employee of the university, e.g. as a teaching assistant or instructor. The policy might however provide a general guidance on how the fair dealing exemption can be applied. For further information, students can refer to the Copyright Guidelines for Students and Users of the Queen's Library.
Depending on the circumstances, copying or communicating a copyright-protected work outside the Fair Dealing Policy may be permitted under the fair dealing exemption in the Copyright Act.
If you want to learn more about fair dealing, try our Fair Dealing Tool. This tool is a resource for researchers and students who would like to learn how to apply fair dealing to the material they are using in publications and theses.
There are a number of other relevant exemptions for educational institutions.
Activities permitted under the educational exemptions in the Act for the purposes of education or training on the premises of an educational institution include:
Copying of copyrighted works in presentations & training sessions
Section 29.4 (1) permits an instructor to reproduce a work, or do any other necessary act, in order to display it.
This section will allow you to reproduce works to display them in lecture halls and classrooms on Queen's Campus. This means that you can include many materials in PowerPoint slides without requesting permission from a Copyright holder.
Note: this section only applies if a commercial copy of this work suitable for use is not available in Canada. Also, the use must take place on the Queen's campus.
Copying of copyrighted works in tests & exams
Section 29.4 (2) allows for the copying of copyrighted works in tests and exams and permits the distribution of works by telecommunications.
Copying copyrighted works in public performances
Section 29.5 allows for the performance of a dramatic, literary, musical or cinematographic work. Section 29.6 allows for the playing of sound recordings and live radio broadcasts. For both 29.5 and 29.6, the use must be on university property, not for profit and before an audience primarily made up of students For this to apply to sound recordingsor cinematographic works, you must be using a non-infringing copy (eg. a purchased copy) or have no reasonable grounds to believe that it is an infringing copy.
In addition, the video must have been recieved by lawful means (from the library, a video store or a video rental store - not downloaded from the pirate bay or another illegal website).
Reproduction of broadcasts (news & commentary)
Section 29.6 (News and Commentary) will allow you to make a copy of a news or commentary program and show it in class for educational purposes as long as you are on the premises of the educational institution before an audience consisting primarily of Queen's students. In addition, the telecommunication must have been received by lawful means (eg. must be recorded from a television, not recorded from an illegal stream on the internet).
Contact the Copyright Office if you have any questions regarding playing music or videos in your class.
Publicly available materials on the internet
Section 30.04 of the Copyright Act provides an exemption from copyright infringement for copying, communicating and performing in public by an educational institution or a person acting under the authority of one, e.g., a faculty member or administrative staff, for educational or training purposes of a copyright-protected work that is available through the Internet. The exemption is however subject to a number of conditions that must be met before the exemption applies. The conditions are as follows:
- you have acknowledged the author & website, (e.g., through a URL, and if given the source, the name of the author, in the case of a work, the name of the performer, in the case of a performer’s performance and the name of the record label in the case of a sound recording);
- there is no technological protection measure preventing access to the material or preventing copying of the material) that either restricts access to the work or restricts copying, communicating or performing in public the work (e.g. a presentation on a website like Prezi, a video on YouTube);
- there is no clearly visible notice prohibiting educational use of the content; and
- the material was posted legitimately (i.e. by the or with the consent of the Copyright owner and/or the educational institution or person acting under its authority did not know or should not have known that the work was made available through the Internet without the consent of the copyright holder.
Using the exemption under section 30.04(1) is preferable to copying or communicating a copyright-protected work under the Fair Dealing Policy because the entire work may be copied or communicated under section 30.04(1).
A technical protection measure (TPM) is the formal term used in Canadian copyright legislation for a digital lock. A TPM is a software device aimed at ensuring authorized uses of a work, either by controlling access to the work or by controlling uses of the work, such as copying, distribution or performance. The Copyright Act prohibits the circumvention of TPMs, unless the circumvention is done with the permission of the copyright holder. This means that, even if you could copy the work under an exception in the Copyright Act like fair dealing, you cannot circumvent the digital lock to access the work without the permission of the copyright holder.