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Copyright & You

FAQs--Miscellaneous

Is the copyright holder the same as the author of a work?

No.  The author may be the copyright holder, or the publisher may be the copyright holder if the author has signed over copyright.  In most cases, copyright of a published work is held by the publisher unless the author has exercised the option to retain some rights through an author's addendum (e.g. from a publisher or SPARC Canadian Author Addendum) or through other licensing arrangments such as Creative Commons.

If I am the author of a work, do I need to ask permission to use the work in a course pack?

If you hold the copyright than you have the right to grant permission for the use of this work.  If you have assigned your copyright to a publisher than you do not have the right.

 

Would copying two “short excerpts” of a published work, one distributed as a class handout on the first day of class and one posted on my course management system on the last day of class, be considered as separate instances of “fair dealing”?

No---Unless the combined amount of both instances would fall within the 'short excerpt' limitations such as under 10%.   Copying or communicating multiple Short Excerpts from the same copyright-protected work with the effect of exceeding the copying limits under “Short Excerpt” definition would be considered systemic or cumulative copying, which is strictly prohibited. 

 

 If I purchase an online case study or research report for class discussion, can I copy it or post it online to share with students?

 It depends on its terms and conditions of use.  Some publishers allow printing out one copy for use within an organization but don’t permit reproduction or distribution of the material.  A different price may be offered for making multiples copies for educational user access.

 

I adopted a textbook for my course, and the book representative gave me instructional materials, including images, PowerPoint files, etc. Can I distribute any of those materials to my students on paper or in Moodle?

If you wish to only distribute a "short excerpt," as defined in Fair Dealing then you may distribute them as a class handout or post these materials onto Moodle.

In all other circumstances, you should discuss your planned use with the publishers's representative. Publishers such as Pearson and Wiley wll often allow use for the following limited educational purposes: inclusion in a password-protected course website, solutions/answers, test questions), use as presentation material in your classroom lectures, or inclusion in paper tests/exams, hand-outs, or assignments that you create for the sole purpose of supporting your course syllabus.

 

Is there a difference between posting copyrighted material on a publically available website versus on the University’s course management software which is password protected?

Yes. Instead of posting the actual content, provide a link to the material if available online.  Some publishers grant permission to post their materials on a password-protected site and require limiting access to students enrolled in a specific course.

 

 Are there special rules for scanning?

The rules for making a digital copy are the same as the rules for making a physical (paper) copy.

 

How would copyright apply if the student is accessing a KPU course from outside Canada?

If the student is a KPU student than materials presented in the online course would fall under Canadian Copyright law, and the exception for fair dealing could be applied, even though the student is accessing the material in a country that could have different copyright laws.

What About Displaying Material in Class?

Can I scan an item and project it in class? 

Yes, this is allowed under the exceptions for educational institutions in the Copyright Act: Reproduction for instruction 29.4 (1) "It is not an infringement of copyright for an educational institution or a person acting under its authority for the purposes of eduation or training on its premises to reproduce a work, or do any other necessary act, in order to display it." However, there is some restriction provided by 29.4(3) which states: "(3) Except in the case of manual reproduction, the exemption from copyright infringement provided by subsections (1) and (2) does not apply if the work or other subject-matter is commercially available, within the meaning of paragraph (a) of the definition "commercially available" in section 2, in a medium that is approopriate for the purposes referred to in those subsections."

The goal of Copyright Modernization Act is to make the Act "technology neutral" so it can be applied to new technolgy as it comes along so the Section 29.4 (1) above replaces the wording below from the previous Copyright Act:

(a) make a manual reproduction of a work onto a dry-erase board, flip chart or other similar surface intended for displaying handwritten material, or

(b) to make a copy of a work to be used to project an image of that copy using an overhead projector or similar device for the purposes of education or training on the premises of an educational institution.

What About Copying for Tests and Exams?

Can I copy portions of materials for the purpose of creating tests and examinations?

Yes, you can:

  • reproduce, translate or perform a work in public on the premises of KPU, as required for a test or examination, provided the work is not already available in a commercial format;
  • communicate a work by telecommunication to the public situated on the premises of KPU, as required for a test or examination, provided the work is not already available in a commercial format;

What About Conference Papers or Presentations?

If the audience for the conference paper or presentation is primarily KPU students or faculty, the inclusion of copyright protected material is generally permissible under educational exceptions s. 29.4 or s. 30.04 in the Copyright Act.

If the audience does not primarily consist of KPU faculty and/or students,  the inclusion of copyright protected material will likely fall under the Fair Dealing exception for the purposes of education, research or private study or  criticism/review.

You must acknowledge the author and source of the work.

What About PowerPoint Presentations?

Can I include copies of another person’s images and materials in my PowerPoint presentations?

Under fair dealing you may include another person’s work, including images, in your PowerPoint presentations that you display to students enrolled in your course. You must adhere to the amount that may be copied under fair dealing.

However, what you can display in the classroom may be different from what you can distribute to your students.

It is important that access to the material is limited to the students enrolled in the course and that the copying limits are respected if the slides will be handed out rather than just displayed in the classroom.

If you need to make use of a greater volume of material than that which is permitted through fair dealing, you must  seek express written permission from the copyright holder to copy and communicate that content.  Be sure to keep a copy of any permissions received.

What About Copying of Out of Print Books?

Although a book is out of print that does not mean it is no longer protected by copyright.  Fair dealing for educational uses allows making copies of "short excerpts."  If a substantial portion is required, it is best to contact the publisher to either request permission to use the material and/or determine whether the work is still under copyright or has become public domain.

What About Government Publications?

Do I need to obtain permission to copy crown publications?

As of December of 2010, permission is no longer required to reproduce Government of Canada works, in part or in whole, for personal or non-commercial public purposes or for cost-recovery purposes. Note;  permission is always required if the work is being revised, adapted or translated, even if the purpose is the same as above.  Adaptation means reproducing the work in different format such as digitizing a print document.

As of November 18, 2013, Publishing and Depository Services no longer administers Crown Copyright and Licensing on behalf of Government of Canada departments and agencies. If you are seeking  copyright clearance for Government of Canada information, please contact the department or agency that created the information.

Some departments and agencies have provided specific contact points to request copyright clearance related to their material.  For more information and links to specific departments, click on: http://publications.gc.ca/site/eng/ccl/index.html

Click here for a link to an excellent overview by Lesley Ellen Harris on how to obtain permission to use Canadian government content.

 

What About B.C. Government Publications?

For provincial government works, Ontario is the only province that allows reproduction of her publications for personal or public non-commercial use without getting permission. Provinces & territories, with the exception of Manitoba, Nunavut & Quebec, allow reproduction of statutes, regulations and judicial decisions for educational purposes, but permission is still required for other publications.  Check the copyright statement on the relevant government website to see if permission is required to copy what you need. 
 

What About U.S. State Government Publications?

Harvard University just released this great resource for determining the copyright status of state government documents. Click on any individual state and it takes you to an information/resource page for sorting out what if any government documents of a particular state are copyrighted. This would be very useful to refer to when questions arise about digitizing state government documents of other states.

http://copyright.lib.harvard.edu/states/

What About Interlibrary Loan?

The Supreme Court of Canada was very clear in the CCH Canadian Ltd. v. Law Society of Upper Canada Judgment (2004) that libraries can act on behalf of their users for fair dealing for research or private study.  Any copies made would have to meet the fair dealing criteria outlined on the Copyright Guide/Fair Dealing tab

 Under Section 30.2 (4) and (5)  of the Copyright Modernization Act:

A library, archive or museum, or a person acting under the authority of one, may, under subsection (5) provide a copy in digital form to a person who has requested it through another library, archive or museum if the providing library, archive or museum or person takes measures to prevent the person who had requested it from

  • making any reproduction of the digital copy, including any paper copies, other than printing one copy of it
  • communicating the digital copy to any other person
  • using the digital copy for more than 5 business days from the day on which the person first uses it

What Is A Mash-Up?

An individual can use copyrighted works such as images, videos, music, text, etc. in the creation of a new work (e.g. modifying a mathematical table, creating an instructional video, creating slides or documents) as long as the original works are cited.

The derivative work must be transformative.

The Copyright Modernization Act created a new exception:  the Mash-up exception (or non-commercial User Generated Content).  The 'mash-up' exception allows users to incorporate existing copyrighted material in the creation of new works, such as Internet mash-ups, as long as:

  • it is done for non-commercial purposes
  • the existing material was legitimately acquired
  • the work that is created is not a substitute for the original material
  • the work that is created does not have a substantial negative impact on the markets for the original material, or on the creator's reputation

Images, tables, videos, music, text, etc can all be used in the creation of a new work and the new work can be in any form including video, slides or documents.  For example you could spice scenes from video or movie trailers to create a 'fan made' video or splice scenes from legally purchased movies or videos, for the purpose of creating a lecture or powerpoint.

You can also disseminate these 'mash-ups' (means you can  post the mash-up to YouTube or on a website).

There does not appear to be limits on the amounts you can include in the mash-up but it is necessary to keep in mind that it must not "have a substantial negative impact on the markets for the original material" and the derivative work must be transformative. The original works must be cited.

What Are Personal User Rights?

The following are 'personal' user rights  (as opposed to institutional):

'Format-shifting' exception (Section 29.22) or Reproduction for Private Purpose

Allows the copying of any legitimately acquired music, film or other works onto any device or medium (such as MP3 players):

  • Must be only for the individual's private use
  • Must have legally obtained the work, other than by borrowing or renting
  • Cannot give the reproduction away
  • Cannot keep the reproduction if the original version is given away, rented or sold

For example, this allows you to copy a song purchased from iTunes from your computer onto a device, such as an iPod, or files from a legally purchased CD to your computer. This exception does not allow you to copy songs onto a CD or mini-disc (or any other audio recording medium).

'Time shifting' exeption (Section 29.23) or Reproduction for Later Listening or Viewing

Allows the recording of television, radio and internet programmming in order to enjoy it at a later time, with no restrictions as to the device or medium used.  For example, an individual could record a show on a PVR to watch at a later time.

  • Used only for privately viewing the work at a later time
  • Signal must have been received legally
  • Must keep no longer than is necessary to lister or view
  • Cannot give the recording away
  • Can make only one copy
  • Does not apply to works or sound recordings accessed through an on-demand servcie, or to works protected by digital locks

Backup Copies

Copies of works may be made for backup purposes in cases where the legally obtained source copy is lost, damaged or otehrwise rendered unusable:

  • Source must be a legally obtained copy
  • Must own the source (not borrowed or rented)
  • Does not apply to works protected by digital locks
  • Backup copy may not be given away
  • Backup copy becomes the source copy

What About Computer Programs?

The following are other exceptions under the Copyright Act that apply generally, but are relevant to educational institutions and persons acting under the authority of an educational institution.

Computer Programs:

If you own a copy of the computer program that is authorized by the owner of the copyright, or has a licence to use a copy of the computer program, you may:

Reproduce the copy by adapting, modifying or converting it, or translating it into another computer language, if you prove that the reproduced copy:

  •  is essential for the compatibility of the computer program with a particular computer;
  •  is solely for your own use; and
  • was destroyed immediately after you ceased to be the owner of the copy of the computer program or to have a licence to use it;

Reproduce for backup purposes the copy or a reproduced copy referred to above if you prove that the reproduction for backup purposes was destroyed immediately after you ceased to be the owner of the copy of the computer program or to have a licence to use it

Reproduce the copy for the sole purpose of obtaining information so you can make the program and any other computer program interoperable.

Encryption Research, Security and Temporary Reproductions for Technological Processes:

Reproduce a work or other subject-matter for the purposes of encryption research if:

  • it would not be practical to carry out the research without making the copy;
  • you have lawfully obtained the work or other subject-matter; and
  • you have informed the owner of the copyright in the work or other subject-matter;

Reproduce a work or other subject-matter for the sole purpose, with the consent of the owner or administrator of a computer, computer system or computer network, of assessing the vulnerability of the computer, system or network or of correcting any security flaws

Make a reproduction of a work or other subject-matter if such reproduction:

  • forms an essential part of a technological process;
  • has the sole purpose of facilitating a use that is not an infringement of copyright
  • exists only for the duration of the technological process.

 

What About Online Transmission of Lessons?

The Copyright Modernization Act introduces a special educational exception: Reproduction for lessons by telecommunication (Section 30.01)

Educational institutions and persons acting under the authority of an educational institution are allowed to communicate a lesson (including tests or exams), to the students enrolled in that specific course, by telecommunication for education or training purposes, and record such lessons.  The student can also make a copy of such telecommunicated lesson to be viewed or listened to at a later time, provided that:

  • the student and the institution must destroy the recording or copy within 30 days after receipt by students of their final course evaluations
  • the institution must take reasonable measures (eg. installing digital locks) to limit the audience to students only
  • the institution must take measures that can reasonably be expected to prevent the students from fixing, reproducing or communicating such lessons except as permitted under this exception
  • the recordings cannot be sold or distributed widely (beyond the audience of students enrolled in the class)

Section 30.1 was intended  to make sure that copyright compliant lessons could be fixed and communicated to students and still remain copyright compliant.  This is intended to better inable modern forms of distance and home learning.  Since this exception applies to lessons that contain copyrighted works, it effectively extends the existing exception for in-class display to the digital environment, providing distance-education instructors and students with a similar set of rights as those that have long been enjoyed in the classroom.  For example, this allows music students--both those in the classroom and those who are participating from a remote location--to perform a copyright-protected song together as part of a lesson.

It is important to note that Section 30.01 does not authorize the copying of materials to create the lesson itself.   If the use of the copyright materials in the lesson is copyright compliant (either allowed by a users right in the Copyright Act or by permission of the copyright owner) then Section 30.1 allows the lesson that includes these materials to be communicated to and copied by students to watch later.

Section 30.1  is technologically neutral as to the original lesson.  It does not matter whether the lesson is in print or electronic form originally.

It is not totally clear how the requirements of this exception will play out in practice, but the wording suggests that instructors will need to create new fixations (including recordings) of lessons for each iteration of a course, and that students will only be allowed to print a single copy of the course materials and will be required to destroy a significant portion of their learning materials shortly after completing a course.

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Definitions

What are Digital Locks?

A digital lock means any effective technology, device or component that, in the ordinary course of its operation, controls access to a work, a performer's performance fixed in a sound recording or a sound recording, and whose use is authorized by the copyright owner.

What does 'circumvent' mean?

Circumventmeans, in respect of a Digital Lock, to descramble a scrambled work, decrypt an encrypted work or otherwise avoid, bypass, remove, deactivate or impair the Digital Lock.  

What are moral rights?

Even if the author sells the copyright to someone else, he/she still retains what are called moral rights. This means that no one, including the person who owns the copyright, is allowed to distort, mutilate, or otherwise modify the work in a way that is prejudicial to the author's honour or reputation. In addition, the work may not be used without permission in association with a product, service, cause or institution in a way that is prejudicial to the author's honour or reputation. Moral rights cannot be sold or transferred but can be waived. An example of infringement of an author's moral rights would be when a publisher buys the copyright on a song and then converts it into a commercial jingle without the author's permission.
 
  

What is the definition of commercially available?

 Commercially available” means, in relation to a work or other subject-matter,

·         (a) available on the Canadian market within a reasonable time and for a reasonable price and may be located with reasonable effort, or

(b) for which a licence to reproduce, perform in public or communicate to the public by telecommunication is available from a collective society within a reasonable time and for a reasonable price and may be located with reasonable effort·           

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What Are Technological Protection Measures (TPMs) or Digital Locks

A digital lock (such as encryption or a password) restricts the ability of users of digital content from sharing or copying the content.  The Copyright Act prohibits the circumvention of Technological Protection Measures (TPMs)  also known as digital locks, even for educational uses that are otherwise permitted by the Copyright Act.    For example, the encryption on most commerical DVDS, or the serial-key validation required by many sotware programs, protects from unauthorized use and cannot be broken even if the purpose fo the use is otherwise allowed.

TPMs  are defined under two categories:

·         any effective technology, device or component that controls access to a work (“access control”), and

·         any effective technology, device or component that restricts one from exercising the exclusive rights of a copyright owner or remuneration rights, i.e. that control the reproduction or copying of a work (“copying control”).

There was a lot of concern over the TPM provisions (section 41) in the Act---some felt they could potentially trump  or prevail over its educational provisions, including both the fair dealing exception and some of the special exceptions afforded to educational institutions

Others believe that the intention behind the TPM provisions is not to stifle fair dealing and other educational exceptions, but rather to help ensure that copyright holders receive fair compensation for their work. Moreover, academic instructors are already accustomed to accessing works protected by such controls through the legitimate channels provided by their institutions, and so it seems reasonable to suggest that this prohibition will likely have a minimal impact on everyday instructional practice

[Fair dealing] allows users to make fair copies of portions of a work for certain purposes. It does not grant any user a right to free access to that work. A researcher must still legally obtain access to a work in order to make a fair dealing copy. . . . For example, if an academic article was only being provided behind a “paywall” (where the reader must pay a certain amount to access the article), users desiring to make fair dealing copies would still have to pay to access the article. However, once the content is legally accessed or acquired, users could circumvent any technology that prevents them from making fair dealing copies of the text of the article.

The Digital Lock provisions of the Copyright Act are new and subject to interpretation, so there is still room for more legislative reform and consideration by the courts to address numerous questions and issues raised by these requirements.

 

Are there Sections of Bill C-11 Not Yet in Force?

Yes, a limited number of provisions of C-11 are not yet in force, most of which relate to reciprocity of copyright protection in World Intellectual Property Organization (WIPO) treaty countries, which will not come into force until each of the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty come into force in Canada.

 

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What Are The Statutory limits?

The Copyright Modernization Act revises the current provisions for statutory damages by placing a cap on infringements .  Statutory damages for copyright infringements with non-commercial purposes have been reduced from the current $500 to $20,000 per work infringed, to $100 to $5,000 for all infringements in a single proceeding for all works (not for each work infringed). The current range continues to apply to cases of infringement for commercial purposes only. The change reduces the likelihood of lawsuits against individuals for non-commercial activities and would apply to educational institutions engaged in non-commercial activity and significantly reduce their potential liability for infringement.