Use this 5-question guide to assist in making decisions regarding your rights and accountabilities concerning use of a particular work. Each question needs to be considered before you copy material for teaching and learning or research purposes.
1. Is the material you wish to copy still protected by copyright?
The Canadian Copyright Act provides that copyright protection automatically exists in every original literary, dramatic, musical and artistic work when it is created. Protection lasts in most cases for the life of the author or creator and extends another 70 years after which the material is said to be in the “public domain”.
Copyright also subsists in certain “non-traditional” subject matter, such as performer’s performances, sound recordings, and broadcast signals, where the clock generally starts from the first performance of the work. Legislative amendments in 2015 increased the term of copyright in sound recordings and performers performances in sound recordings to 70 years following the first performance or recording release.
Much of the material that you will use in your research and teaching will fall under Canadian copyright protection.
See the Term of Copyright (Copyright Act s.6) and Term of Rights – (Copyright Act s.23) (sound recordings and performances).
2. Is the proposed use "substantial"?
Copyright only applies to the reproduction of the entire work “or a substantial part thereof” (Copyright Act 3 (1)). Copying that is not substantial therefore does not require permission or payment of fees or royalties. Here is where it can get complicated since what is deemed “substantial” is not explicitly defined by the law but rather is a matter of degree and context.
Substantiality takes in considerations including what it is you are reproducing, how it relates to the original work, the amount you plan to copy and what you will to do with it.
For the purposes of its 2015 decision regarding tariffs due to Access Copyright by the Provincial and Territorial Governments, the Copyright Board considered that 1-2 pages not to exceed about 2.5% of the whole work or about 1 page of a 40 page document, constitutes an insubstantial portion of a work. This can be used as a general amount guideline to determine “substantial” keeping in mind that more than the quantity reproduced should be considered.
For example the scholarly practice of citing a few sentences or even a few paragraphs in an article or essay, with attribution of course, would generally be considered insubstantial and not subject to copyright protection. On the other hand, reproducing a complete article from a journal or a few chapters from a book to use as supplementary reading for your class may be considered substantial and could be protected by copyright.
3. Does permission exist in the form of a licence?
a. Digital Licences
The Library has negotiated digital licences for the university community for a large volume of online articles and e-books. Often these are bundles of resources that are licensed through consortial agreements with our colleague institutions. Acceptable use is indicated in the terms of each licence, and what is permitted may not be uniform across all subscription packages.
b. Creative Commons Licences
The presence of a Creative Commons licence immediately alerts users of the work to the conditions for reproduction. Creative Commons offers a selection of licence options to offer creators varied levels of control over how they permit their work to be used. Each varies according to specific criteria creators place on their work, such as whether or not the work can be adapted or used commercially.
c. Open Access
Typically no restrictions are placed on access and in most cases re-use of material housed in an open access journal or on an open access platform is allowed.
4. Is the use allowed under a statutory exception?
b. Educational Institution Exception
c. Personal Use Exception
Individuals in the course of conducting research have additional latitude built into the Copyright Act. Like the research and private study purpose in the Fair Dealing exception, the Reproductions for Private Purposes exception allows copying by individuals for their own use or translating a work into a different format. Additional restrictions such as using a non- infringing copy of the original and not circumventing any digital locks placed on the original in order to to make the copy are required.
5. Do you need to secure copyright clearance?
When all other options enabling the reproduction of a work have been exhausted, seeking clearance from the copyright holder is required and must be received before reproducing the material.
Before initiating a process to seek clearance, it might be useful to determine if there is an alternate way to make the material available without reproducing it, which will satisfy your purposes. For example, many resources available online through one of our library digital collections can be linked from your course syllabus or embedded in a lesson within Blackboard. Linking is always an option.
It is best to secure clearance in writing. Keep a copy for your own records and indicate on the copy you make once cleared, that it is used with permission. Fees or tariffs or royalties might be required and it always adds time to the process, as much as an additional 6 to 8 weeks or more.
Sometimes clearance is not granted or cannot be secured in a timely fashion and choosing an alternative resource will be required.
The Bookstore is also available to assist with securing copyright clearance for course packs.
Adapted from Western University's Copyright Decision Map