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Copyright Guide for Faculty and Staff

Fair Dealing (Section 29)

As a result of changes to the Copyright Act, Saint Mary's University has adopted Universities Canada “Fair Dealing Policy for Universities” document to guide and support SMU's goal of total copyright compliance.

"The fair dealing provision in the Copyright Act permits use of a copyright-protected work without permission from the copyright owner or the payment of copyright royalties. To qualify for fair dealing, two tests must be passed.

First, the “dealing” must be for a purpose stated in the Copyright Act: research, private study, criticism, review, news reporting, education, satire or parody. Educational use of a copyright-protected work passes the first test.

The second test is that the dealing must be “fair”. In landmark decisions in 2004 and 2012, the Supreme Court of Canada provided guidance as to what this test means in educational institutions.

These Fair Dealing Requirements apply fair dealing in non-profit universities and provides reasonable safeguards for the owners of copyright-protected works in accordance with the Copyright Act and the Supreme Court decisions."

Source: Universities Canada - Fair Dealing Policy for Universities

Fair Dealing in Canada Myths & Facts from CARL

Fair Dealing Analysis - Two Part Test

A fair dealing analysis can help you identify if your proposed use may be fair. It consists of two parts.

1. Identify if your use falls within one of the Copyright Act's recognized purposes of research, private study, education, parody, satire, criticism, review, and news reporting. This is a statutory requirement to use the exception.

2. Apply the six non-exhaustive factors identified in Supreme Court decisions to help you determine the degree to which your use of the material may be considered fair based on past case law and current practices:

  • Purpose  - What is the goal of your copying and how will you use the material?
  • Character - Are you making copies? How many? How will they be distributed? Will you destroy the copy after use?
  • Amount - How much will you copy? Consider both the quantitative amount and how it relates to the work as a whole.
  • Alternatives - Are there practical alternatives to making a copy? Non-copyrighted equivalent?
  • Nature - Is the work published or unpublished? How is this work typically used? Scholarly? Private or confidential?
  • Effect - Will your use compete with the original on the commercial market?

Note that your use does not have to meet every one of the factors in order to be fair, and no factor is considered to be necessarily more important than any other. It all depends on the circumstances. Other factors may also be worth considering based on your situation.

When combined with a Fair Dealing Analysis, institutional guidelines and policies can also be useful tools. The Universities Canada Guidelines for Fair Dealing provides general guidance that is applicable to an academic environment.

Fair Dealing Guidelines via Universities Canada

Guidelines

1. Teachers, instructors, professors and staff members in non-profit universities may communicate and reproduce, in paper or electronic form, short excerpts from a copyright-protected work for the purposes of research, private study, criticism, review, news reporting, education, satire or parody.

2. Copying or communicating short excerpts from a copyright-protected work under this Fair Dealing Policy for the purpose of news reporting, criticism or review must mention the source and, if given in the source, the name of the author or creator of the work.

3. A copy of a short excerpt from a copyright-protected work may be provided or communicated to each student enrolled in a class or course:

(a) as a class handout

(b) as a posting to a learning or course management system that is password protected

or otherwise restricted to students of the university

(c) as part of a course pack

4. A short excerpt means:

(a) up to 10% of a copyright-protected work (including a literary work, musical score, sound recording, and an audiovisual work)

(b) one chapter from a book

(c) a single article from a periodical

(d) an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart, and plan) from a copyright-protected work containing other artistic works

(e) an entire newspaper article or page

(f) an entire single poem or musical score from a copyright-protected work containing other poems or musical scores

(g) an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work provided that in each case, no more of the work is copied than is required in order to achieve the allowable purpose.

5. Copying or communicating multiple short excerpts from the same copyright-protected work, with the intention of copying or communicating substantially the entire work, is prohibited.

6. Copying or communicating that exceeds the limits in this Fair Dealing Policy may be referred to a supervisor or other person designated by the university for evaluation. An evaluation of whether the proposed copying or communication is permitted under fair dealing will be made based on all relevant circumstances.

7. Any fee charged by the university for communicating or copying a short excerpt from a copyright protected work must be intended to cover only the costs of the university, including overhead costs.

Source: Universities Canada - Fair Dealing Policy for Universities

 

Work Available Through Internet (Section 30.04)

Section 30.04 of the Copyright Act states that it is not an infringement of copyright for an educational institution, or a person acting under the authority of one, to do any of the following acts for educational or training purposes in respect of a work or other subject-matter that is available through the Internet:

  • (a) reproduce it;

  • (b) communicate it to the public by telecommunication, if that public primarily consists of students of the educational institution or other persons acting under its authority;

  • (c) perform it in public, if that public primarily consists of students of the educational institution or other persons acting under its authority; or

  • (d) do any other act that is necessary for the purpose of the acts referred to in paragraphs (a) to (c)

For this exception to apply:

  • The work or site it is posted on must not be protected by a digital lock or other technological protection measure
  • The source (author, broadcaster, performer etc) must be credited
  • There is not a clearly visible notice forbidding it to be used for educational purposes (and not merely the copyright symbol)
  • The work or subject matter made available through the internet was made available with the consent of the copyright owner (IE Not an infringing copy)

Source: Copyright Act

A Note on Digital Locks

Some copyright holders use digital locks to restrict access to copyright-protected works and/or to limit the use that can be made of such works. The Copyright Act now prohibits the circumvention of digital locks to obtain access to copyright-protected works. The Fair Dealing Policy does not permit the circumvention of digital locks to obtain access to copyright-protected works. In order to circumvent a digital lock it is necessary to obtain the permission of the copyright holder.

 

Source: Application of the Fair Dealing Policy for Universities (Universities Canada)

Other Educational Exceptions

For more information on the various educational exceptions in the Copyright Act including information on works available through the internet & reproduction for instruction and examination, please view the Copyright Act sections 29.4 through 30.04

Alternatives

An alternative for providing course materials could be:

Disclaimer

Please note: This guide does not provide legal advice. It is intented to give guidance about acceptable use of copyright protected materials.