There are five questions that must be considered before you copy material for teaching, learning, or research purposes:
1. Is the material you wish to use still protected by copyright?
A first question is to consider whether the term of copyright has elapsed.
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 plus 50 years, after which it is often referred to as being in the public domain. Copyright also exists in certain “non-traditional” subject matter, such as performers' performances, sound recordings, and broadcast signals, where the clock generally starts from the first performance of the work. Much of the material that you will use in your research and teaching will fall under Canadian copyright protection. See the Term of Copyright section of the Act.
2. Is the proposed use “insubstantial”?
A second question concerns how much of the original you wish to use and if it is substantial.
Copyright only applies to the reproduction of the entire work “or a substantial part thereof” (Copyright Act s.3). Copying that is not substantial does not require permission or further payment. However, what is deemed substantial is a matter of degree and context. It includes considerations such as what it is you are copying, how it relates to the original from which it is taken, the amount you plan to copy, and what you wish to do with it. See Section II C, Insubstantial Portions of Works, of CAUT Guidelines for the Use of Copyrighted Material.
3. Does permission exist in the form of a license?
Next question is to determine whether the use is articulated in any license covering the material.
Is this material covered by a license? Does the license allow the use that you propose, e.g. interlibrary lending, copying in the classroom, etc.? If so, then you will be able to use the material without further permission or payment. The University has signed various licenses described here which cover copyrighted materials. Alternatively, a Creative Commons License may apply.
Library Licenses
StFX has negotiated digital licenses for many 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, and what is allowed may not be uniform across all subscription licenses. This license information is available through the Library website by searching individual journal titles. See How to Check Copying Restrictions for a Specific Journal, or you may contact your Liaison Librarian.
Creative Commons Licenses
Another simple check is to see if the work includes a Creative Commons License. With the increase in open access publishing, Creative Commons is becoming an easy, intuitive and popular option. To initiate the process of securing a license for your own work, visit Creative Commons Licenses.
4. Is the use allowed under a statutory exception?
Next question is to look to the Copyright Act for a statutory exception permitting use. These exceptions are covered within this guide.
In the education context, the Copyright Act provides considerable scope for copying without the necessity of seeking the consent of the rights holder. This has been clarified by several Supreme Court decisions. Consult the Copyright Act for more information and additional exceptions.
For educational institutions, three of these exceptions are of major importance:
Fair Dealing Exception
This is perhaps the most significant statutory exception. In its 2004 CCH Canadian Ltd. v. Law Society of Upper Canada ruling, the Supreme Court has indicated that Fair Dealing is “always available” to users provided applicable requirements are met.
To fall within this exception two criteria must be addressed:
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The dealing must be for an allowable purpose: research, private study, education, parody, satire, criticism, review, or news reporting.
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The dealing itself must also be “fair”; having regard to: the purpose of the dealing; the character of the dealing; the amount of the dealing; the nature of the work; available alternatives to the dealing; the effect of the dealing on the work.
Education Exception
The Educational Institutions exception makes provision to copy, and in some cases, to telecommunicate material for the purpose of education or training on the premises of the institution, primarily for an audience of students. Additional restrictions may apply in some circumstances.
For a summary of specific uses covered by this exception, see Educational Exceptions.
Personal 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 Reproduction 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 on the original to make the copy are required.
5. Do you need to obtain copyright permission?
When all other options enabling the reproduction of a work have been exhausted, obtaining permission from the copyright holder is required.
Before initiating a process to obtain permission, determine if there is another way to provide access to the material without having to reproduce it. For example, many resources are available electronically through our library digital collections and can be linked from your course syllabus or embedded within Moodle.
Material that is copied through a transactional license should be marked as such on the circulated copies: 'This work has been copied under license from the copyright owner.'Please note that sometimes clearance is not granted or cannot be secured in a timely fashion (allow 6 to 8 weeks) and choosing an alternative resource will be required.
This Getting Started Guide is adapted with permission from Copyright @ Western.
