Copyright Guide for Faculty and Staff

As a result of changes to the Copyright Act, Saint Mary's University has adopted Fair Dealing guidelines to support SMU's goal of total copyright compliance.

Under our guidelines, short excerpts of a copyright protected work can be reproduced for teaching or research purposes, as long as certain conditions are met. These conditions are based on the Copyright Act as well as recent decisions from the Supreme Court of Canada.

To determine if your use of a work may fall under the Fair Dealing provision, there are two tests that must be passed:

1. Your use of the work must be for research, private study, criticism, review, news reporting, education, satire or parody. Educational use of a copyright-protected work passes the first test.

2. Your use must be "fair." Decisions from the Supreme Court of Canada provide guidance on factors to consider during this process. This is called a Fair Dealing analysis, and should be performed each time you use copyright protected works.

Although the Copyright Office cannot provide legal advice, we can provide information and answer questions that may help you with your analysis. Please contact us copyright@smu.ca.

Fair Dealing in Canada Myths & Facts from CARL

A fair dealing analysis can help you identify if your proposed use of copyrighted material 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• Nature - Is the work published or unpublished?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 to help evaluate your use.

In assessing how much of a work is fair to copy, copyright law does not set a single fixed percentage. However, as a general rule:

• Copying 10 percent of a work is likely to be fair.
• Copying more than 10 percent of a work may be fair depending on the circumstances.

For example:

• Copying an entire chapter from a book is likely to be fair.
• Copying an entire article from a periodical publication is likely to be fair.
• Copying an entire short story, play, poem or essay from a book or periodical publication is likely to be fair.
• Copying an entire entry from an encyclopedia, dictionary, annotated bibliography or similar reference book is likely to be fair.
• Copying an entire reproduction of an artistic work from a book or periodical publication is likely to be fair.
• Copying a single musical score from a book or periodical publication is likely to be fair.

As the percentage of a work being copied increases, more care should be exercised. If, for example, a book only contains two chapters then reproducing an entire chapter may be unfair.

Source: CAUT Guidelines for the Use of Copyrighted Material

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

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)

Fair Dealing is just one of the educational exceptions in the Copyright Act. More exceptions, including information on works available through the internet & reproduction for instruction and examination, can be found in the Copyright Act sections 29.4 through 30.04

If your use does not meet the requirements for an exception, there are many alternatives such as:

• Use Public Domain, Open Educational Resources (OER) or titles with Creative Commons licenses
• Library Reserves
• Link to materials contained in the library's licensed databases. Please see the E-Books & Articles page for tips on providing students with stable URLs.

If you have questions about what exceptions or licenses may be available for your use, please contact the Copyright Office. to discuss your options!

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