Copyright

Copyright Law in Canada protects a wide range of works. As noted in the Act, "copyright", in relation to a work, means the sole right to produce or reproduce the work or any substantial part of the material, to perform the work or any substantial part of it in public. If the work is unpublished, the copyright holder has the right to publish the work or any substantial part. For further details please refer to the Copyright Act.

Use of copyrighted works require permission from the copyright owner unless one of the exceptions in the Copyright Act applies. While the Act contains other exceptions that might apply, "fair dealing" is an important provision within an educational context.

The fair dealing provision outlined in section 29, 29.1, and 29.2 in the Copyright Act permits the use of a copyright-protected work without permission from the copyright owner or the payment of copyright royalties.

To qualify as fair dealing, two tests must be passed:

1. 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.
2. The dealing must be "fair." In landmark decisions made by the Supreme Court of Canada in 2004 and 2012, six factors were outlined that help to determine whether or not the dealing is fair:

- goal (or purpose) of the dealing
- character of the dealing
- amount of the dealing
- nature of the work
- available alternatives to the dealing
- effect of the dealing on the work

These guidelines assume that the user is working with a copyright-protected work; a College license does not cover the work; and the copying is a substantial part. These guidelines only deal with situations where fair dealing is relevant and are a general description of the extent of copying that is likely to be considered fair dealing in most contexts in accordance with the Copyright Act and the Supreme Court decisions.

1. Faculty, staff and students may reproduce, communicate or otherwise deal with short excerpts or portions of a copyright-protected work for educational purposes. Copying for the purpose of research, private study, parody, satire, criticism, review or news reporting is permitted under the fair dealing exception.

2. Sources must be mentioned. Copying or communicating short excerpts from a copyright-protected work under these Fair Dealing Guidelines 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.

3. Reproducing a single copy of a “short excerpt” from a copyright-protected work may be provided or communicated to each student enrolled in a class or course as:

• a class handout
• a posting to a learning or course management system that is password protected or otherwise restricted to students of the college
• part of a course pack

As a guideline, copying a portion of up to 10 percent of a work may be within fair dealing provided that in each case, the excerpt contains no more of the work than is required to achieve the allowable purpose. More that 10 percent may be fine under certain circumstances such as copying:

• 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 poem or musical scores
• an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work

Note that fair dealing analyses consider all factors, including both the quality and quantity of the dealing.   

4. 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.

5. Any fee charged by the college for communicating or copying a short excerpt from a copyright protected work must be intended to cover only the costs of the college, including overhead costs.

If the dealing appears to fall outside the purpose and fairness factors of the fair dealing exception, you may need to examine additional statutory exceptions or seek clearance from the copyright owner before copying. The Fair Dealing exception is only one of several statutory exceptions contained in the Canadian Copyright Act. Other exceptions or conditions may apply to your situation.

Section 29.21 of the Copyright Act gives users the right to use published work to create a new work. It is often referred to as the mash-up provision.

The following conditions apply to any material created under this provision:

1. Must not be used for commercial purposes;
2. Original source(s) must be mentioned if it is reasonable to do so;
3. Individual has reasonable grounds to believe that the original work used did not infringe copyright (material must be legally acquired);
4. Resulting user-generated content does not have a "substantial adverse effect" to the copyright holder of the published works used.

Examples of User-Generated Content:

• Creating a "mash-up" of video clips from legally purchased films for the purposes of creating lecture material.
• Making a video of an individual acting out or dancing to a popular song and posting it online.

What you may not do:

• Add a few lines to an eBook or a brief introduction to a song and post the copy for free online.
• Re-order tracks on an album and distribute it.

For the purposes of education or training, educational institutions or a person acting under its authority may do any of the following:

Reproduction for Instruction (Section 29.4)

Reproduce a work or do any other necessary act in order to display it. For further details, see section 29.4 of the Copyright Act.

Reproduction for Examinations (Section 29.4)

• Reproduce, translate or perform a work in public on the premises of Durham College as required for an examination.
• Communicate a work or other subject-matter by telecommunication to the public situated on the premises of Durham College as required for a test or examination.

This exception is not applicable for works that may be located with reasonable effort or are commercially available, except in the case of manual reproduction (i.e. onto a whiteboard, flip chart, or any other surface intended for displaying handwritten material).

Performances (Section 29.5)

Educational institutions and persons acting under the authority of an educational institution are allowed to carry out the following performances, if performed on Durham College premises for educational or training purposes and not for profit, before an audience consisting primarily of students, faculty or any person who is directly responsible for setting a curriculum for Durham College if:

• the live performance in public, primarily by Durham College students, of a work;
• the performance in public of a sound recording, or of a work or performer’s performance that is embodied in a sound recording, as long as the sound recording is not an infringing copy or the person responsible for the performance has no reasonable grounds to believe that it is an infringing copy;
• the performance in public of a work or other subject-matter at the time of its communication to the public by telecommunication; and
• the performance in public of a cinematographic work, as long as the work is not an infringing copy or the person responsible for the performance has no reasonable grounds to believe that it is an infringing copy.

News and Commentary (Section 29.6)

A single copy of a news program or a news commentary program may be made, excluding documentaries, for the purposes of performing the copy for educational or training purposes.

Reproduction of Broadcast (Section 29.7)

A single copy of a work may be created by a member of an educational institution at of public broadcast. The copy may be kept for up to thirty (30) days to decide whether to perform it for educational or training purposes. If the copy is not destroyed by the expiration of thirty (30) days, copyright is infringed, unless royalties are paid.

Section 30.04 of the Copyright Act allows work available through the Internet to be reproduced, communicated or performed for an audience consisting primarily of Durham College students or other persons acting under Durham College’s authority, for educational or training purposes as long as the source is mentioned and the name of the author, performer, maker or broadcaster is credited if it is given.

This provision does not apply if:

• the works are protected by a Digital Lock that restricts access to the work;
• a clearly visible notice (and not merely the copyright symbol) prohibiting such use is posted on the website;
• the educational institution or person acting under its authority knows or should have known that the works were made available on the Internet without consent of the copyright owner.

Please note that copyright holders may require a particular type of attribution (e.g. Creative Commons).

Section 32 of the Copyright Act permits for a person with a perceptual disability (individuals who are blind, visually impaired, or otherwise print disabled), for a person acting at the request of such a person, or for a non-profit organization acting for the benefit of such a person to:

• make a copy or sound recording of a literary, musical, artistic or dramatic work, other than a cinematographic work, in a format specially designed for persons with a perceptual disability;
• translate, adapt or reproduce in sign language a literary or dramatic work, other than a cinematographic work, in a format specially designed for persons with a perceptual disability; or
• perform in public a literary or dramatic work, other than a cinematographic work, in sign language, either live or in a format specially designed for persons with a perceptual disability.

This provision applies to literary, musical, artistic or dramatic work. This does not apply to cinematographic work. This exception allows the user to create copies in a format specially designed for persons with a perceptual disability. Perceptually disabled students include blind and visually impaired students, as well as students with learning disabilities and physical disabilities. 

Educational institutions may not make a large-print book for a student with a perceptual disability without permission from the copyright owner. This provision does not apply in situations where the work or sound recording is commercially available in a format designed to meet the needs of the individual with a perceptual disability.