COPYING RIGHT
A guide for Canada's universities to copyright, fair dealing and
collective licensing
August, 2002
This guide reflects the provisions of the Copyright Act and associated
regulations in force as of September 1, 2001
Prepared for _________________ University by the Association of
Universities and Colleges of Canada and the Canadian Association of
Research Libraries
COPYRIGHT ON CAMPUS
Every day across Canada, university professors, staff and students make
thousands of photocopies. Books, journal articles, speeches, sections
from plays - they're all being copied. The copies help students learn,
assist professors in their teaching and research, and facilitate the
smooth running of the university.
But is that copy you're making legal? The answer lies in the rules in
the Copyright Act and in the licence your university has signed with the
copyright collective now called Access Copyright, The Canadian Copyright
Licensing Agency (formerly CANCOPY).
This brochure will help guide you through the law and licence so that
you can be sure you are copying right.
WHAT IS CANADA'S COPYRIGHT LAW?
Canada's Copyright Act, originally enacted in 1924, is complex, and is
subject to periodic revision. But one thing is clear: it is an
increasingly important law for Canada's universities. Ignorance of the
law will not protect you against charges of copyright infringement, the
consequences of which can be serious, with civil or even criminal
prosecution possible.
Copyright law protects a variety of creations, including such diverse
items as inter-office memos, books, computer programs, databases,
sculptures, songs, films, even a drawing scribbled on the back of an
envelope. It gives copyright owners - usually authors or publishers -
the sole right to copy or to authorize someone else to copy their works.
Moreover, copyright law is international. If a work is protected in any
one of over 100 countries, it's protected by copyright here.
There are, however, a number of important legal exceptions to this right
of creators to control the reproduction of their own works. One
important exception is called "fair dealing". Fair dealing balances the
rights of copyright owners with the needs of users, such as students and
researchers, who require access to copyright material to pursue their
studies. For universities, with their mission of creating and passing on
knowledge through teaching, research and scholarship, understanding the
copyright law and being able to apply the concept of fair dealing is
fundamentally important.
WHAT IS FAIR DEALING?
The Copyright Act provides that dealing with any material protected by
copyright for the purposes of private study, research, criticism, review
or news reporting is not an infringement of copyright. Fair dealing with
a work does not require the permission of the copyright owner or
the payment of royalties.
Although well-recognized in Canada and abroad, fair dealing has never
been clearly defined in Canadian legislation, and the courts have tried
to interpret what it means. As a result, while "fair dealing" exists,
there is a lot of disagreement over what it includes.
In deciding whether copying is fair dealing, the courts have determined
that the relevant factors to be considered include the length of the
excerpts used, the relative importance and quality of the excerpts used,
and whether a copy is made for academic or commercial purposes. Fair
dealing usually involves copying only a reasonable portion of a work.
Fair dealing applies to photocopying as well as other methods of
reproduction - including the making of slides, microfiche, or
transparencies as well as to faxes and other methods of electronic
transmission.
What if I need to copy more than fair dealing allows?
In the past, when students, faculty and staff wanted to make copies that
didn't fall under fair dealing, they were required to contact individual
copyright holders and obtain permission. That process was often onerous
and time-consuming. Many individuals didn't even know where to
start.
The Copyright Act permits the formation of copyright collectives in
Canada. Collectives represent groups of copyright owners for the purpose
of collecting copyright payments on their behalf and authorizing the use
of their works. Collectives also offer "blanket licences" that allow
for the use of a broad range of material without seeking individual
permission.
For published works, two collectives are now in existence in Canada,
offering licences to cover copying of published material, usually books
or articles, by photocopying, facsimile, or similar methods of copying.
Universities in Quebec operate under a licence with a Quebec-based
collective known as COPIBEC (formerly, the Union des écrivaines et
écrivains québécois). In the rest of Canada, most universities have
signed licences with a collective now known as Access Copyright, The
Canadian Copyright Licensing Agency (formerly CANCOPY). Your university
has signed a licence with Access Copyright. The licence your university
has with Access Copyright does not permit digital reproduction by or for
students or professors.
WHAT IS THE ACCESS COPYRIGHT LICENCE?
The licence your university has signed with Access Copyright allows
professors, students, and staff at your institution to make copies other
than those allowed under fair dealing. For example, professors can make
multiple copies of a periodical article, enough for every student in the
class. Librarians can make multiple copies of a work to put on reserve.
Copies can be made for administrative purposes. And multiple copies can
be produced by the university bookstore for inclusion in student course
packs.
There are still limits to the proportion of a work that can be copied.
For example, the licence generally limits copying to either 10 percent
of a work for personal use (or 15 percent if the copies are to be sold),
or the whole of a chapter which is 20 percent or less of a book, a short
story, poem, or journal article from a book or periodical issue
containing other works, or a newspaper article, whichever is greater.
The licence makes it a lot easier for students, professors and
administrators to get on with their work and not have to worry whether
or not a copy is legal, every time they press that start button on the
photocopier. In fact, armed with the licence and the fair dealing
provision in the copyright law, you should be able to copy most of the
material you need in the course of your day-to-day activities.
HOW DOES THE LICENCE WORK?
Your university, on behalf of students, faculty and staff, pays an
annual fee to Access Copyright to cover a variety of copying, including
the copying at self-serve copiers in libraries and at other locations,
and copies made at photocopiers in various departments. No
record-keeping is required, as long as the copies are not sold.
The university has also agreed that, when photocopied material is sold,
for example, when the bookstore or university print shop produces course
packs and sells them to students, records will be kept and Access
Copyright will be paid a pre-set amount (5.4 cents as of September 2002)
for each page copied in order to cover royalty payments to the copyright
owner. This amount will likely be included in the price of the course
pack when it is sold to students.
The Access Copyright licence doesn't cover all works. Certain whole
categories of works, for example, unpublished works and sheet music, are
not covered by the licence. In addition, some authors and publishers
have specifically excluded some or all of their works from coverage
under the licence. There is a list called an "exclusions list", attached
to the licence and available through your library, which sets out these
excluded items. So if the copying you want to do does not fit into the
fair dealing guidelines, (for example, you want to make 30 copies for
distribution in today's biology class), you need to do a quick check of
this list to be sure the licence covers the work involved. In most
cases, it will. But if not, you need to get permission from the
copyright owner directly or through Access Copyright.
Be familiar with the licence before you copy. Your university has posted
signs to help you understand it.
WHAT IS COVERED?
Taken together, the law and the University's licence allow the following:
- fair dealing with respect to any work for the purposes of research,
private study, criticism, or review;
- copying works in the public domain (copyright protection normally ends
fifty years after the death of the author of a work);
- copying the text of federal and Ontario laws, statutes and judicial
decisions;
- copying no more than 10 percent of a work for personal use (or 15
percent if the copies are to be sold), or the following, whichever is
greater: an entire newspaper article, short story, play, poem, essay
or article from a book or periodical issue; an entire entry from an
encyclopaedia, dictionary, annotated bibliography, or similar work;
an entire chapter which is less than 20 percent of a book.
WHAT IS NOT COVERED?
Some copying activities in universities are not covered by the concept
of fair dealing or the licence. These include:
- copying an entire book;
- repeated, systematic and cumulative copying from the same published work
- copying that would eventually result in a substantial part of that work
being copied;
- copying published sheet music or workbooks;
- copying of unpublished works, such as private letters, diaries,
or class notes.
COPYRIGHT CUES
Here are some more tips that can help guide you further through the
often perplexing world of copyright:
- Check your dates. Generally, copyright protection lasts for 50 years
following the death of the creator. After that, works are in the public
domain and can be copied freely.
- Don't copy letters to the editor or newspaper advertisements without
permission. And remember, the individual who wrote the letter or
prepared the ad owns the copyright, not the newspaper.
- Don't change a work in any way while copying -- for example, by
editing or changing the phrasing. Creators retain the moral rights
to the integrity of their own work, and that means you can't make
changes to suit your needs.
- With regard to government publications, anyone can copy federal laws
and judicial decisions without charge, and without asking permission,
provided the copy is accurate and it is not represented as an official
version. This also applies to statutes, regulations and judicial
decisions of the Province of Ontario. At this time, copying other
provincial or territorial laws or judicial decisions requires the
permission of the appropriate government.
COPYRIGHT AND THE INTERNET
Much of the material on the Internet is protected by copyright. This
includes postings to news groups, e-mail messages, images, photographs,
music, video clips and computer software. The general rule is that you
must get permission from the owner (usually the person or organization
that created the material) to use text, graphics, images, sound and
video that have been created by others. There are some things that are
not usually protected by copyright, for example, facts, information,
titles, ideas, plots, and short word combinations; neither are works in
the public domain. The licence that the University has with Access
Copyright does not cover works in electronic form.
The use of copyright materials from the Internet is an area of law that
is currently under study in Canada and around the world, and possible
changes to the law are under active consideration. The universities and
research libraries of Canada are active participants in these
discussions.
LICENSED E-JOURNALS AND DATABASES
Your University Library has purchased licence agreements with several
publishers of electronic journals and other information that may permit
limited downloading and printing from these licensed resources. Each
resource is governed by the terms of a specific licence. Staff in the
Reference Department of your library will be able to provide details.
COPYRIGHT FLOW CHART
Is it a print work?
NO - consult licences which cover the copying of film or other
media, or in the case of unlicensed electronic information,
obtain permission from the copyright owner
YES - Is it a published work?
NO - obtain permission to copy from the copyright owner
YES - Is the work now in the public domain?
YES - copy it
NO - Is your copying fair dealing?
YES - copy it
NO - Is your copying covered by the Access Copyright licence?
YES copy it
NO - Seek permission to copy from the copyright owner
(or ask Access Copyright for assistance).