A Researcher’s Guide to Copyright Law Myra J. Tawfik

CIGI Senior Fellow and

Professor of Law University

of Windsor

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License: CC0 Public Domain / FAQ Free for commercial use / No attribution required

Disclaimer: For informational purposes only. Nothing in this presentation is intended as legal advice or the provision of legal services.

Copyright Law in Canada

Governed exclusively by the terms of the

Copyright Act

BUT Canada belongs to a number of

international treaties (ex: Berne

Convention, WTO/TRIPs) that establish

minimum standards that we must adhere to

Countries are free to enact higher standards

so the law may differ from country to

country

Canadian Copyright Law

The Act recognizes copyright protection as well

as moral rights protection

Moral Rights in a nutshell:

Creators enjoy the right to the integrity of their

works (to prevent mutilation or distortion of the

work to the prejudice of his or her reputation) and

the right of attribution (to be named as creator

including under a pseudonym or to remain

anonymous)

Basic Principles of Copyright

Protection

Copyright arises automatically upon creation of the work –

Copyright only protects works that are fixed in some material form

Basic Principles of Copyright

Protection

Copyright protects the expression of an idea, not the idea itself

Copyright protects original

a)Literary

b)Artistic

c) Musical

d) Dramatic works -

The Test for ‘Originality’

A work will be original if sufficient

skill and judgment are employed in its

creation.

Effort, labour, ‘sweat of brow’,

‘industrious collection’ alone will not

be enough to obtain copyright

protection

(CCH v. Law Society of Upper Canada SCC 2004)

Generally speaking, facts are NOT protected at all BUT

Compilations of facts can be protected if the selection and arrangement of those facts are sufficiently ‘original’ to meet the legal test

Only the particular selection and arrangement would be protected, not the facts themselves.

Grey area: databases

Duration of Copyright

Life of the author + 50 years after the author’s death – even if copyright is assigned to 3rd party, term is dependent on the life of the actual author

A number of other countries have moved to life + 70 years or even life + 100 years (Mexico)

Pressure on Canada to move to life + 70 (ex: TPP)

Entitlement to Protection

Author/Joint-Author

Assignee and licensee

Provincial and Federal Crowns (ie Government publications)

Employer for works done in the course of employment – unless agreement to the contrary

“Agreement to the Contrary”: Wilfrid

Laurier Collective Agreements (FT

and PT Faculty)

“The copyright on all literary works, dramatic works, musical works, artistic works, computer programs, or other forms of intellectual property produced or created by Members is vested in the Members who created the works. The benefits that may accrue to Members may be limited by the terms of external contracts and licencing agreements.”

Copyright Infringement

Section 3 of the Act gives the author (copyright holder) the sole right to do any or all of the actions enumerated therein including the sole right to authorize a 3rd party to do any or all of the enumerated actions

This Includes:

The sole right to reproduce the work or any substantial part of the work in any material form (multiply copies) – or give permission..

The sole right to perform the work or any substantial part thereof in public – or give permission…

The sole right to publish the work – or give permission…

The sole right to translate the work – or give permission

The sole right to communicate the work to the public by telecommunication (covers online activity/digital copyright) – or give permission…

Prohibition on Circumvention of

Digital Locks

The prohibition applies regardless of the

reason for the circumvention – even though

the Act allows for permitted uses of

copyright works without permission, if the

work is locked, it doesn’t matter whether

you circumvent to exercise a permitted use

or not.

Always Allowed

Reproducing works in public domain (no copyright or copyright has expired) – but watch for sneaky contractual restrictions

Quoting short passages from another work with attribution

Reproducing a ‘non-substantial’ part of the work

In general, linking to a website (except for deep linking or if link refers back to defamatory or infringing material) but note terms of use on website for any restrictions

Permitted Uses of Copyright

Works:

Fair Dealing s. 29

Fair Dealing is not equivalent to Fair Use

The Fair Dealing provisions identify

specific categories of permissible uses

Assuming your use fits within a specified

category, that use must still be ‘fair’

Fair Dealing

S. 29: Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright

S. 29.1: Fair dealing for the purpose of criticism or review does not infringe copyright. Requires attribution (source and name of author)

S. 29.2: Fair dealing for the purpose of news reporting does not infringe copyright. Requires attribution (source and name of author)

The Supreme Court of Canada on Fair

Dealing

“…The fair dealing exception…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.” CCH v. Law Society of Upper Canada (2004)

Factors to be Considered

(1) the purpose of the dealing;

(2) the character of the dealing;

(3) the amount of the dealing;

(4) alternatives to the dealing;

(5) the nature of the work; and

(6) the effect of the dealing on the work

Invoking Fair Dealing

Always a question of judgment – there are no hard and fast rules – bottom line: can’t unduly harm the market for the original work

Does your use fit within one or more of the enumerated categories (broadly construed such that streaming previews of musical works = fair dealing for research)?

AND is your use ‘fair’ under the 6 part analysis set out in CCH?

General Tip: Consult the AUCC Fair Dealing Guidelines, adopted by most Universities including Wilfrid Laurier

Specific Exceptions for Personal, Non-

Commercial Use:

User Generated Content

“You Tube Exception” allows you to

reproduce published copyright content and

use it in a new work without permission

New work must be used solely for non-

commercial purposes, source must be

attributed and you must be reasonably

certain that the content you have copied is

not infringing. New work must not

significantly adversely affect the original.

Specific Exceptions for Individual,

Non-Commercial Use:

Reproduction for Private Purposes – Space Shifting (s. 29.22)

Reproduction for Later Listening or Viewing – Time Shifting (S. 29.23)

But not where there are digital locks in place

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Permitted Uses and Exceptions for

Educational Institutions, Libraries,

Archives

General Exception: Fair Dealing

Special Exceptions: Educational Institutions, Libraries, Archives and Museums:

Some exceptions require that the institution have a reprographic and/or digital license with a collecting society (ex: Access Copyright)

New rules for online courses and material available through the Internet–

Work Available over the Internet

An educational institution or person acting

under its authority can:

Reproduce it, communicate it to students online,

perform it to students with attribution UNLESS

Website is protected by a digital lock or website

clearly states that copying etc is prohibited

General Tip: Always check copyright notices

on websites to see what you can and can’t do

with the content of the website

Copyright Licenses and Other

Applicable Agreements and Policies

Access Copyright License – Wilfrid Laurier

license applies to hard copies and digital copies –

covers uses falling outside of fair dealing

Contractual terms of use for online journals

Wilfrid Laurier Fair Dealing Guidelines (AUCC

Guidelines)

Wilfrid Laurier Ownership of Student-Created IP

Policy

What Can I Do in the Classroom?

Educators and educational institutions benefit from:

Fair dealing

NB: SCC - teacher making copies of excerpts of recommended readings for the entire class = fair dealing for private study and research

Education Exceptions

Access Copyright License (where applicable)

What can I do in my Online Course?

Educators and educational institutions benefit

from:

Fair dealing

Education Exceptions – specific rules where

course is “communicated to the public by

telecommunication”

Access Copyright License (where applicable)

Terms of use of online journal, ebook and other

online materials

BUT – digital locks trump

Open Access and New Tri-Council

Policy Grant recipients must ensure that all peer-reviewed journal

publications arising out of the grant be made freely accessible within 12 months of publication

Accessibility:

Scholars Commons @ Laurier – institutional repository and/or

Publishing in an open access journal

BUT much depends on the terms and conditions of the individual publisher –Requires that you publish in journals where author retains copyright OR where journal expressly allows deposit in institutional repository

Open Access and Creative Commons

Similar objectives:

CC= copyright holder decides

how her published work is to be

used by others – regardless of

what the work is or how it is

published or disseminated

OA= copyright holder agrees to

permit free access to her

scholarly journal publications

Least restrictive CC licence

CC-BY

Final Tips and Suggestions

As users: Use works that are in the public domain: No copyright in the first place (ex: facts) or copyright has expired

If the work is not in the public domain and is available online, use open access material or material issued under a Creative Commons license but always check on the particular terms of the license

Remember that Terms of Use agreements can trump fair dealing or other permitted uses as can digital locks

Final Tips and Suggestions

As authors: Consider issuing all of your work

under Creative Commons licenses and publishing

exclusively in Open Access scholarly journals

Negotiate with publishers who require an

assignment of your copyright to allow you to

deposit your publications in your institutional

repository, post your work on SSRN or your

website etc

• Thank you!