Library

Fair dealing

Copyright law was developed to serve the public interest by providing rights to both creators and users of works. The fair dealing provisions in the Copyright Act attempt to balance these two interest groups. The Copyright Act allows MRU students and staff to use portions of works if the use is for the purpose of research or private study, criticism, review, news reporting, education, parody or satire. If the amount and type of dealing with the work is "fair," then it does not infringe copyright. The Copyright Act has no actual definition as to what is "fair" under fair dealing.

MRU has created Fair Dealing Guidelines which are tools designed to help you determine whether your educational use of copyrighted works fall within the Copyright Act's user rights. Although these suggest "fair" amounts to use, the quality of the excerpt and the proportion of the over all work must still be "fair" in each particular case.

There are limits to fair dealing, however, as it does not mean that you can use whatever you want. Here are some examples:

• Fair Dealing - Mount Royal University's Fair Dealing Guidelines permit the copying of up to 10% of a copyrighted work, or certain slightly larger portions of copyrighted works if they can be considered to be a discrete unit (e.g. 1 chapter of a book if it is not significantly greater than 10% of the entire book).
• Websites -  Check websites for a "terms of use," "copyright," "legal," or "more info" button (these are just a few examples) to see if they explicitly prohibit educational use. Keep in mind that sometimes webmasters post third party works that they may (or may not) have permission to use, so it's important to always track down the true copyright owner. An example is a blogger who posted a celebrity photograph without the photographer's permission. If it seems likely that the poster did not have authority to post a work, such as a video on YouTube or a photo no Flickr, then do not use it. User rights only apply to legally obtained materials.
• Digital Locks - Never circumvent a digital lock such as a login and password of any sort to access material used under your user rights. The Copyright Act disallows the circumvention of a technical protection measure ("TPMs") on digital content. An example is a borrowed or hacked password for a website or pirating software to copy even a short clip from a copy protected DVD. 
• Open environments: For students and instructors at MRU, user rights only apply to the use of copyrighted material in closed educational environments such as classrooms and D2L. Your user rights will no longer apply if you share other peoples' works publicly (e.g. on public websites, social media sites, at conferences, in student portfolios, or for off-campus displays or presentations). 

If you want to use more than the limited amounts allowed under MRU's Fair Dealing Guidelines, it is best to seek permission (though other user rights may also apply). It may also be prudent to perform a full fair dealing analysis based on the six factors set out by the SCC in CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13 by examining:

1. The purpose of the dealing, including if it is for research, private study, education, parody or satire, criticism, review or news reporting;
2. The character of the dealing, including whether it involves single or multiple copies, whether the copy is destroyed after it is used for its specific intended purpose, and typical industry practices;
3. The amount of the dealing from the individual user's perspective, including the proportion of the work to be copied and the importance of the excerpt in relation to the entire work (in some cases, such as use of a photo, it may be fair to use the entire work);
4. Alternatives to the dealing, including whether there is a non-copyrighted equivalent available;
5. The nature of the work, including whether it is published or unpublished and whether it was confidential; and
6. The effect of the copying on the work, including whether the copy will compete with the commercial market of the original work. This allows all of the factors involved in a given situation to help determine the applicability of fair dealing.

Each of these factors may be more or less relevant depending on the context, and in some cases, there may be other factors that should be considered. Since CCH, the Supreme Court of Canada (SCC) has released a number of judgments that have emphasized that fair dealing must not be interpreted restrictively and must be given a broad and liberal interpretation. For example, research is not limited to traditional creative or scholarly pursuits, but can also include circumstances where an individual is simply curious about a topic for personal reasons, or even if they are earning a profit (e.g. a lawyer conducting research on behalf of a paying client).

The SCC has also stated that teachers providing copies to students also falls under fair dealing as the students are the end users and so the use must be assessed as if each student were copying the work. The Court has declared fair dealing to be technologically neutral; applying equally to paper and digital formats. In the educational context, this means that "fair" excerpts of works may be distributed to students as print handouts and digitally, such as through D2L. However, fair dealing is not intended to discourage commercial production of learning materials and tools. This means that fair dealing may not apply if the use significantly affects the commercial market for the work or if it's available commercially at a reasonable cost within a reasonable time.

Lessons by telecommunication

Section 30.01(3) ​Copyright Act extends educational user rights to online courses so that remote students are not at a disadvantage to those who attend traditional physical classrooms. There are various conditions, however:

• Content must be provided in the form of a lesson, which may be a live virtual classroom session or lessons posted to D2L.
• Reasonable technical protection measures (TPMs) must limit access to students enrolled in the class (i.e. post to D2L).
• The lesson must be destroyed 30 days after final course evaluations.
• Students must destroy any copies of the lesson they have made 30 days after final course evaluations.
• You cannot break a technical protection measure (TPM or "digital lock") on a digital work - for example, using pirating software to extract a clip off a DVD or audio work.

Libraries, archives & museums

Section 30.2 of the Copyright Act provides user rights for libraries, archives and museums. Under this exception, a university library may:

• Make a copy for the purposes of cataloging, internal record keeping or for insurance purposes or police investigation;
• Make a copy for the purposes of restoration; and
• Use digital technology to deliver an inter-library loan copy of a work.

As long as a replacement copy is not commercially available in a medium and of a quality that is appropriate for these purposes, a university library may also:

• Make a copy of a work if the original is rare or unpublished and is deteriorating, damaged or lost;
• Make a copy of a fragile document or recording for on-site consultation if the original cannot be viewed, handled or listened to, because of its condition; and
• Make a copy if the original is in an obsolete format, or is in danger of becoming obsolete, or the technology to use the original is unavailable, obsolete or is becoming obsolete.

Section 30.2(1) of the Copyright Act allows libraries, archives or museums to "do anything on behalf of any person that the person may do personally under section 29 or 29.1." This means that libraries can apply user rights on behalf of their patrons. There are other provisions under the Copyright Act that apply specifically to libraries, archives and museums which can be accessed here. 

Music, TV, & movies

Under the Copyright Act, a copyright holder has the exclusive right to show a work in public, or to authorize the showing of that work. These rights are known as Public Performance Rights. Outside of the educational context, a person must seek permission from the copyright holder before showing a work in public. Recent changes to the Copyright Act have created an exception to this rule for academic institutions. 

Under section 29.5 of the Copyright Act, persons acting under the authority of an educational institution (e.g. instructors while teaching and students in delivering their assignments) may do the following on the premises of an education institution for an audience consisting primarily of students and instructors of the institution, for educational and training purposes and not for profit:

• Have students perform a work;
• Play a sound recording or video (movie), provided the copy played is not an illegitimate copy itself; or
• Play a live television broadcast.

Under section 29.6 of the Copyright Act, a person acting under the authority of an educational institution may:

• copy a news program (excluding documentaries) at the time of broadcast and show it to a class at a later time

The Copyright Act defines educational premises as "a place where education or training…is provided, controlled or supervised by the educational institution."

Under section 32.2(3) of the Copyright Act, persons acting on behalf of an educational institution may do any of the following if there is an educational objective:

(a)The live performance in public of a musical work;

(b) The performance in public of a sound recording embodying a musical work or a performer’s performance of a musical work; or

(c) The performance in public of a communication signal carrying

(i) the live performance in public of a musical work, or

(ii) a sound recording embodying a musical work or a performer’s performance of a musical work.

This means that students and instructors may perform live or recorded musical works if in furtherance of an educational objective, and also present a communication signal of either in class.

Note: This likely does not include a student or other interest group showing a movie for purely social purposes.

Presentations & exams

Under section 29.4 of the Copyright Act, anyone acting under the authority of an educational institution may do the following on the premises of that educational institution for the purposes of education or training:

• Reproduce a work in order to display it (e.g. a PowerPoint presentation in a classroom during a lecture).
• Reproduce a work as required for a test or examination.

This user right is not available where the works may be located with reasonable effort or are commercially available, except in the case of manual reproduction (i.e. onto a whiteboard, flip chart, or any other surface intended for displaying handwritten material). 

What is the public domain?

In Canada, a work becomes public domain (meaning it belongs to the public) 50 years after the end of the year of the creator's death. This means that if an artist died on March 24, 1968, all of her works became public domain on January 1, 2019. Public domain works can be used by anyone for any purpose as they are no longer protected by copyright.

How can I tell if something is in the public domain?

Determining whether a work is in the public domain can be complicated, as the duration of copyright differs depending on the type of work, whether it was created by an employee, whether there were multiple creators, whether it was published, and its format. Some general guidelines are:

• Literary works (e.g. books, articles, blogs, emails, plays, lyrics): 50 years after the creator's death (i.e. she died in 1968 or earlier).
• Photographs: are particularly complex due to changes in the Copyright Act in 2012, but generally, the 50 year rule applies (i.e. the photographer died in 1968 or earlier).
• Images (including illustrations, charts, diagrams, doodles, paintings, maps, etc.): 50 years after the creator's death (i.e. the creator) died in 1968 or earlier).
• Cinematographic works (movies & videos): If published, they enter the public domain 50 years after the year of publication, but if unreleased, they enter the public domain 50 years after creation.
• Government publications: May be protected by Crown copyright, which depends on whether the work was published, whether it was produced by a federal, provincial, or municipal department, and many additional factors. It is best to examine the work itself and contact the relevant agency or department if you are unsure.

The above is a very general overview of some of the commonly accessed works by members of the MRU community. If you are looking for more information, the University of British Columbia has an extensive site which is a wonderful resource for public domain information. 

Editions, arrangements, translations & adaptations

Copyright comes into effect as soon as a work is 'fixed.'  If a work later undergoes significant alterations, it may be considered a new work with a separate copyright term and owner. Copyright protection may therefore still apply to new editions, arrangements or adaptations of works that have entered the public domain. New terms of copyright can also arise on public domain material when new content (footnotes, critiques, etc.) is added to it.

Only the original work stays in the public domain. For example, a book published in 1901 containing Shakespeare's play would be in the public domain because the author/editor has been dead for more than 50 years, but a book published in 1972 containing Shakespeare's plays and commentary still likely has its own copyright protection as the editor has not been dead for 50 years. For a more detailed chart on the many exceptions to the general 50 year rule, click here.

Public Domain on the Internet

Many websites provide access to digital reproductions of public domain works. For example, the websites of museums and art galleries often include digital images of manuscripts, paintings, sculptures, and other creative works that are public domain. Although the act of digitizing these works is not creative enough to create its own copyright, you must be careful to use such works only after considering any applicable terms or conditions imposed by the hosting organization.

This is also true of license agreements for e-resources accessed through MRU Library: although ARTstor includes thousands of digital images of public domain works, the ARTstor license agreement governs how these images can be used and it overrides user rights.

Note: Always remember that pretty much everything on the Internet is protected by copyright (even if you don't see a copyright notice), as publicly posting a work does not place it in the public domain.

Non-commercial user generated content

Under Section 29.21 of the Copyright Act a broad user right was created for non-commercial contexts. It allows users to incorporate copyright protected works into new works such as fan fiction, videos of you lip-synching to a pop song and uploading it to YouTube, and many other amateur, not-for-profit contexts. There are 5 requirements:

1. The original work was published – yes the Internet counts if it was originally uploaded by the copyright owner or their permission;
2. The new work is non-commercial (school assignments and teaching count);
3. The original work is cited;
4. The original work used was not a pirated or illegal copy;
5. The new work does not adversely affect, financially or otherwise, the exploitation or potential exploitation of the existing work, including that the new work is not a substitute for the existing one.

The new work must be substantially different from the old work. For example you couldn't just change a small portion of an existing work and claim it was made under this user right. Students can benefit from this provision as they are able to post multimedia assignments that incorporate copyrighted works to the web such as on YouTube, whereas most user rights are voided when works are publicly distributed.

Caution: Even though we have this user right, posts may still be mistakenly taken down by the hosting site itself. Sites like YouTube and Facebook are subject to U.S. copyright law and the Digital Millennium Copyright Act (DMCA). The DMCA allows copyright owners to demand any U.S. based website to take down content that they claim infringes copyright and U.S. law requires that the content be removed immediately. There are options to have the content reposted. YouTube, for example, offers the opportunity to request that content to be reinstated. This can be done using the fair use provision of US copyright law. The allowance for transformative uses of works under US fair use law matches closely with the Canadian non-commercial user-generated content provision to allow the video or other content to continue to be posted (note that a key difference is that in Canada we cannot rely on this to create commercial works).

Works on the Internet (Legality)

JUST BECAUSE YOU FOUND SOMETHING ON THE INTERNET DOES NOT MEAN YOU CAN USE IT HOWEVER YOU LIKE

Content on the Internet, including text, images, and videos, is protected by copyright. Posting an image on the Internet does not place it in the public domain, though it may mean that it has been legally 'published' if posted by the copyright owner or with their permission.

There are large repositories of images on the Internet which contain public domain images, or images licensed under open use licenses such as Creative Commons licenses. You can usually use these images without seeking any further permission, although you must comply with the terms of the license. It is best practice to include attribution information for content, including the source (URL) and, if known, the author or creator. See the Copyright Friendly Resources page for links to resources you can use in teaching.

Under section 30.04 of the Copyright Act, faculty and staff of MRU may reproduce, perform and communicate (e.g. via D2L) works from the open Internet to an audience that is mainly students or staff. There are four requirements:

1. There is no Technological Protection Measure (TPM) such as a login and password.
2. There is no clearly visible notice prohibiting educational use in the Terms of Use.
3. This provision does not apply if you know or should have known that the work was posted without the consent of the copyright owner (e.g. it's not an illegal copy).
4. You fully cite the source including the author/owner's name, the source URL, and any other relevant information.

​Do not post content used under this exception to public websites. The exception only allows distribution to an audience of MRU students and staff.

Technological protection measures (digital locks)

The Copyright Act refers to "technology protection measures," commonly known as "TPMs" or digital locks. This describes any technology, device or component that controls or restricts access to a work (e.g. password protection) or restricts you from doing something with the work (e.g. making a copy). Under the Copyright Act, it is an offense to illegally circumvent TPMs to access works. This means that user rights only apply to works you can legally access.

Citing works

The Copyright Act does not specify any citation requirements beyond the source of the material used and, if available, the name of the creator. While there is no legal requirement to attribute works in the public domain to their creator(s), doing so is an important part of maintaining academic integrity.

Generally, all citations should enable the audience to find the original source and author. If permission has been obtained to use a work, the copyright holder may require a particular citation style or that certain information be included. Examples of where permission requirements go beyond the basic copyright requirements are licensed library databases, creative commons licenses, and individual use agreements. 

Please refer to the citation practices of your discipline for more details. Include the citation as close to the work as possible, within the limitations of the medium and if necessary, include the full citation information in a detailed bibliography at the end of your work , video, or presentation.

Note: Plagiarism is using someone else's ideas or works without giving proper credit to the copyright owner or creator. Copyright infringement is using a work illegally. Simply citing a work does not mean that your use is legal if you don't use it under license, permission, or a user right. In practical terms, although you should always cite every work you use, citing a work avoids plagiarism, not copyright infringement. You may use tiny (insubstantial) amounts of work like inserting a quote into an essay or article as this amount is so small that copyright concerns are not even raised.

Permissions

You are strongly encouraged to contact copyright owners in order to obtain permissions yourself if you want to use a work where your user rights or licenses are not applicable or available. This works well where you have a personal connection to the person or organization that holds copyright.

Written permission is required, though it can be in the form of an email. Keep in mind that, in many cases, the creator may no longer be the copyright owner. If the creator has assigned the copyright (such as through a publishing agreement), then the new owner controls the copyright and they must be contacted. Please ensure that you retain any permissions for at least 5 years following the last year that you use the work.

If you contact the copyright owner yourself, you will need to include the following information:

1. An exact description of the item: For a book, include full publication information, including ISBN, edition, year of publication, page numbers, etc. For a website, include the URL which links directly to the item. For a photograph, include a copy of the photo, its title, the date it was taken (if known), the URL which links directly to the item (not just a Google address), and any other relevant information.
2.  A description of the proposed use, including duration and form of distribution: Describe the audience (who will have access to the material, where will it be distributed, etc.). For course pack or D2L material: Protection/accessibility requirement for gaining access to course material (e.g., is the course password protected? How will students gain access? How many students or classes?). Detail the format (print copies, digital copies, or both). Mention if you will include it in PowerPoint or other visual displays (e.g.: "I wish to use this image in a PowerPoint presentation in a workshop I am giving at [insert name of place] for [insert name of organization] on September 10, 2019. Also, the image will appear on handouts, which will be distributed to 30 participants"). If the proposed use is to post the item on a website, is the website password protected? What's the URL?
3. A statement on profit: Example: "The handouts will not be sold, and no profit will be derived from the use of this image." Example (newspaper): "Advertising space is sold for the print version of the paper" and/or "The newspaper is available to patrons for free."
4. Information on who you are, including contact information: For students, state your name and full contact information (address, phone, email). You may wish to include your program of study. For faculty and staff, state your name, position, and full contact information (address, phone, email).
5. Inquire about costs or other requirements for obtaining copyright approval. Requirements may include a one-time fee, a contract fee to be renewed on a yearly basis, or credit to the author. ​Requirements may also involve conditions such as leaving the material intact, thus not changing it in any way.

It is important to make sure you contact the actual copyright owner. The author of a work may not always be the copyright owner, just as the website owner may not always own copyright in photographs on a website or in a book. 

What do I do if I cannot obtain permission to use someone's work? 

If you are unable to secure permission to use a work, and your use does not otherwise fall within a user right, you will not be able to use this work. Using copyright protected works without permission is a violation of MRU policy and the law, and could result in the copyright holder making a copyright infringement claim. For alternatives to using copyright-protected work see the Copyright-Friendly Resources section of this guide.

Getting Permissions through the Copyright Advisor for works used in-class, in course packs, or posted to D2L

1. Submit a Permission Request: The Copyright Advisor provides permission services for pedagogical materials only. Submit a request by email to MRUcopyright@mtroyal.ca. The Copyright Advisor will review the submission for items that may be provided through user rights, licenses, or freely available sources.
2. Timelines: Depending on the responsiveness of copyright owner, permissions can take as little as one day up to several months (if the copyright owner can be reached). Submit permission requests as early as possible. It is recommended that permission requests be submitted three months before the material is needed, but submit a request at any time in case permission can be secured more quickly.
3. Contact Information: The Copyright Advisor may need to contact you as the permission request proceeds. You will be contacted if problems arise with the request, such as a rejection, unavailability for the specific format you requested, or if the copyright owner charges excessive royalty fees. It may be that the Copyright Advisor can suggest alternative content or other means of providing the content. If you will be away (such as over the summer), make sure that you provide a contact phone number or email that you will be checking from time to time. If this is not possible, please select an alternative contact person who is authorized to make decisions on your behalf.
4. Royalty Fees: Fees for your requests may be covered by your program or department, so be sure to inquire about funding options before approaching the Copyright Advisor.