Copyright: © For Faculty

Fair Dealing is an exemption or user’s right in the Copyright Act that permits the use of copyright protected material for one of the following purposes: research, private study, education, parody, satire, criticism, review or news reporting. The use of the work must be considered ‘fair’ and a citation providing  the source, author, maker, performer, broadcaster, etc. must be included to claim fair dealing.

In two landmark cases (CCH v. Upper Canada Law Society) and Alberta v. Canadian Copyright Licensing Agency) the Supreme Court of Canada has considered the following 6 factors in determining whether a dealing is fair:

1. The Purpose of the dealing.

• is the work being used for one of the purposes listed above

2. The Character of the dealing.

• are single or multiple copies being made
• will the copy be destroyed once it is used

3. The Amount of the dealing.

• how much of the work is going to be used
• is the amount being used insubstantial
• would the amount being used jeopradize the integrity of the work

4. Are there Alternatives available.

• is there a work available that isn't protected by copyright that could be used instead

5. The Nature of the work.

• what is the work intended to do
• how was it originally made available
• is it unpublished

6. The Effect of the dealing on the work.

• will your use have a negative impact on the market value of the original work

 

Also known as the Mash-Up law or Youtube law,  this section of the Copyright Act allows individuals to use an existing work or works to create a new work. The new work can be used or made available for non-commercial purposes only. Students could use this exception to create content for assignments.

Conditions/Limitations for use under the exemption:

• the original source must be cited
• the original source must not be an infringing copy
• the new work must not have an adverse effect on the market of the original work

Technological Protection Measures or digital locks are devices or tools used to protect copyright protected materials from illegal use.

Section 41.1 of the Copyright Act prohibits the circumvention or breaking of a techological protection measure or digital lock.

Examples of techological protection measures/digital locks are: read only documents, password protected materials, watermarks on a photograph.

 

Note: There are no educational exemptions that permit the breaking of a digital lock or circumventing the technological protection measure. If a copy is needed and there is a digital lock you must request permission from the copyright holder.

Copyright owners can allow others to use their works via licensing agreements. This can be done through a Creative Commons license or through vendors who provide access to the material.

The Michener LRC purchases licensing agreements from various vendors allowing access to e-resources such as newspaper, magazine, and journal articles as well as e-books. Each vendor sets use restrictions on the materials in their repertoire. Users must check the terms of use by a vendor to find out what uses are permitted.

It is important to note that although a right may be available under the Copyright Act of Canada, if there is a licensing agreement providing access and use of materials, the license agreement overrides the rights in the Act and the terms of the license must be followed.

The following are educational exemptions which allow for the copying of copyright protected works without permission from the copyright holder or the payment of royalties.

Reproduction for Instruction (Section 29.4 (1) of the Copyright Act)

This exemption permits an instructor to copy a work, or to do what is necessary to display it to students for the purpose of education or training.

Conditions/Limitations for use under the exemption:

• the instruction must take place on the premises of the Michener Institute
• the work must not be commercially available

 

Copying of Copyrighted Works in Tests and Exams (Section 29.4 (2) of the Copyright Act)

This exemption allows for the copying of copyrighted works in tests and exams and permits the distribution of works by telecommunications.

Conditions/Limitations for use under the exemption:

• the test or exam must take place on the premises of the Michener Institute
• work must not be commercially available

 

Copying of Copyrighted Works in Public Performances (Section 29.5 of the Copyright Act)

This exemption allows for the live performance of a dramatic, literary, musical or cinematographic work or the playing of a sound recording, film or video for the purpose of education or training.

Conditions/Limitations for use under the exemption:

• the performance must take place on the premises of the Michener Institute
• the audience must consist primarily of Michener students
• the sound recording, film or video must not be an infringing copy (it can be a purchased copy or a copy borrowed from a library or video store)

 

Reproduction of Broadcasts

News & Commentary (Section 29.6 of the Copyright Act)

This exemption allows the making of a copy of a news or commentary program and show it in class for educational purposes.

Conditions/Limitations for use under the exemption:

• the copy must be made at the time of the original broadcast to the public
• the copy must not be an infringing copy
• the showing must take place on the premises of the Michener Institute
• the audience must consisting primarily of Michener students

 

TV and Radio Broadcasts (Section 29.7 of the Copyright Act)

This exemption allows for the making of a single copy of a broadcast which can be kept for up to 30 days in order to decide whether to show it to students for educational or training purposes.

Conditions/Limitations for use under the exemption:

• the copy must be made at the time of the original broadcast to the public
• the copy must not be an infringing copy
• the copy must be destroyed within 30 days or royalties must be paid
• records must be kept in relation to making of the copy, destruction of the copy,

 

Publicly Available Materials on the Internet (PAMS) (Section 30.04 of the Copyright Act)

This exemption allows faculty for the purpose of education and training to copy, translate, perform in public or communicate by telecommunication copyright protected materials that are publicly available on the internet.

Conditions/Limitations for use under the exemption:

• must cite the source of the works used, including the name of the author/performer/record label
• there is no technological protection measure/digital lock preventing access to the material
• there is no clearly visible notice prohibiting educational use
• the material must not be an infringing copy