by Keith Webster
This article is meant to be an introductory description of the copyright environment for Canadian K-12 and post-secondary teachers. It was written and revised in the years leading up to the Fall of 2015 and incorporates changes in legislation, decisions from the Supreme Court of Canada and new licenses from Access Copyright. The world of educational copyright might now be considered to have reached a plateau but the older this article has become, the more these and other factors may have impacted this topic.
As an educator you might want to use any number of media objects in support of learning. These can range from traditional texts to audio or video to interactive software and multimedia presentations. The instructor might make some of these while others could be found in libraries, institutional repositories, or on the internet. Many of these resources will be subject to copyright and their use by educators will fall under the Copyright Act in Canada.
Lastly, I am not a lawyer and have no specific training in copyright law. I have advised faculty on acceptable practices for using content on the internet and I have advised on the acceptable use of copyrighted material in distance education courses at the University of Victoria. This work represents my ongoing research into the current state of the law and significant impending developments. Consult your institutional authorities to confirm their current interpretation of copyright law and their policy around its application at your school or campus.
Note: Since this article was last updated in 2015 there have been two developments in copyright that will impact an educator's use of copyrighted material but the full impact isn't clear. In the summer of 2017 York University lost a lawsuit brought by Access Copyright. The exact impact isn't certain yet. The new NAFTA (North American Free Trade Agreement) includes a provision to extend the copyright of works by 20 years to 70 years after the death of the author.
What is Copyright?
Copyright is a legal principle started in 18th century Britain in response to the rise of the printing press, the first technology to allow mass copying of intellectual property. Copyright protects the creator’s interest in the expression of an idea, not the idea itself. For example an educator may wish to illustrate the theory of relativity using text, graphics, audio or video. Each of these expressions of the idea of Einstein’s theory could be copyrighted, but not the theory itself. Similarly, regardless of the existence of a copyrighted article expounding this or another idea, an educator can teach such an idea as long as she or he doesn’t misuse a copyrighted artifact. In Canada copyright law is part of federal law, and for educators, most copyright issues are civil matters, outside of the Criminal Code.
In an educational setting it is important to differentiate copyright from plagiarism. A portion of a copyrighted work could be incorporated, without attribution, within another’s academic work, and this could be both a copyright infringement and an example of plagiarism. But most issues of copyright do not involve academic dishonesty, and most examples of plagiarism are not infringement of copyright. Plagiarism is an academic issue while copyright is a legal issue.
Definitive answers about copyright in digital contexts for Canadian educators are rare but recent Supreme Court decisions and legislation have set some guides that are worth noting. Traditionally institutional policies on copyright have been very conservative (ie. aimed at avoiding the possibility of lawsuits rather than the lawful use of copyrighted material) but recent developments have resulted in many institutions and associations adopting a more liberal interpretation of user rights. The following description and comments on the current state of copyright for educators in Canada is informed by the most recent Supreme Court decisions, by the passage of Bill C-11 to amend the Canadian Copyright Act, and by recent discussions among experts in this field.
Several principles and elements of copyright as it applies to online education have become clearer in the last few years, mostly as a result of a series of court cases, but also due to the passage of a copyright reform bill (C-11).
One element that has always existed, is that copying that is not a ‘substantial’ portion of a work is not an infringement of copyright. Exactly what constitutes ‘substantial’ was not well defined and so this use of material was limited or just avoided in many contexts. Some institutions had a policy of no more than a paragraph before copyright needed to be considered. In a Federal Court case (Warman v. Fournier) a claim of copyright infringement was dismissed with the judge stating that the copied portion, amounting to three and a portion of a fourth paragraph from an eleven paragraph original, with most of the original analysis and argument omitted, did not constitute a substantial portion of the work. This case was appealed but that appeal has since been withdtawn. This now consitutes a quantity of copying that is not consequential enough to require further consideration under Fair Dealing or licensing (see below).
Of greater importance have been recent court cases clarifying ‘Fair Dealing’. Fair Dealing has been referred to as a copyright exception or a ‘defense’, but in recent cases it has been declared to be a ‘user right’ as important to the development and dissemination of cultural artifacts as the protection of commercial interest for creators.
Another important development in recent cases and legislation is the clear indication of technological neutrality. When an education exception in copyright law allows the copying of passages onto a blackboard, did it also allow those passages to be placed in an online classroom? The necessity of format shifting to make use of content in an online teaching environment has been a red line for many institutions and educators. Recent Supreme Court of Canada decisions as well as Bill C-11, have made clear that format shifting is no different from any other copying – it may or may not be permissible depending on the circumstances of each case.
How can I use Copyrighted Material?
Use an Unsubstantial Portion of a Copyrighted Work
As described above, use a portion of a copyrighted work that is unsubstantial. This limit has yet to be formally established in some media, and is still subject to interpretation by the courts. The example of three and half paragraphs of text is joined by a common media practice that nine seconds or less of a song is unsubstantial.
Link to a Legal Copy on the Internet
Copyrighted materials may not be available for you to copy at your institution but legal copies may exist online that you are free to link to. These may include journals that openly publish their work online, though they retain full copyright protection. In other cases book chapters may have been placed online by the author in a ‘proof’ (unedited draft) state. In some cases abridged versions of a work that are sufficient for your purposes may be found online. You should avoid linking to a copy of a work online that obviously infringes copyright. It sets a poor example for your students and you may find that the copy is suddenly removed from the web.
Use a Copyrighted Work by License
You (or your institution) may have already paid for the right to use a copyrighted material. Libraries pay for access to journal articles, eBooks and other materials with licenses that typically allow access for students, staff and instructors. You can link to these materials for student access without need for further concern about copyright. Some licenses will even allow a copy to be placed within a Learning Management System (LMS), like Moodle, for easier student access.
If you find a copyrighted work that could be a vital resource for your students' learning you can attempt to obtain permission to use it in an educational context. The likelihood that you will obtain permission, and that this license will be free or at low-cost, will vary with the type and size of organization you are dealing with. Look for a specific contact for the rights holder in smaller organizations or a licensing or distribution contact in larger organizations. When you ask for licensing permission be sure to include the specific name of your educational institution, the size of your class, the frequency of use (ie. how many classes are formed per year) and whether your distribution of the work will be passworded or open. You should seek a written response as proof of your license. An email response may be acceptable if it originates from an address that is identified with the rights holder. Print this email for your records. In most schools and post-secondary institutions program or administrative staff should be involved in this task.
In an era when the most common method of copying and distributing educational resources was with the photocopier, Canadian universities and K-12 educational authorities entered into a series of agreements with Access Copyright (previously CanCopy), an agency representing various publishers in Canada outside Quebec. This system established a per-page rate for copying without the requirement to seek out and obtain permission from individual creators. In return for this payment Access Copyright provided license to copy works within its repertoire. There is some controversy over whether Access Copyright represents as wide a range of works as has been asserted and whether they are able to license the digital reproduction of these works.
If you are a K-12 teacher your institution probably has an agreement with Access Copyright to allow educational copying within certain limits. If you teach in a post-secondary institution it may have an agreement with Access Copyright though many have opted not to renew these agreements. Typically this system allows the copying of part of a work (ie. one chapter of a book, one article from a journal and up to 20% of a work) for one class at a time. There are various requirements to record this copying and you will likely have to clear these copies at your institution. Access Copyright has applied for a mandatory tariff that would essentially require all post-secondary institutions to pay into their service. This application was still being adjudicated at the Copyright Board in the Fall of 2015.
Use a Portion of a Work Under a Fair Dealing Provision
You or your students can copy a portion of a work, within certain constraints, under the ‘fair dealing’ provision of the Copyright Act. Fair dealing makes allowance for ‘education, ‘research’ and ‘individual study’ copying of copyrighted works. There is a six-part test for determining if a use of copyrighted material is fair dealing. The conditions that satisfy these tests may vary from instance to instance and any certainty in their application comes from the growing body of relevant court cases. A more comprehensive description of the six part test can be found in Michael Geist’s “The Supreme Court of Canada Speaks: How To Assess Fair Dealing for Education”. (http://www.michaelgeist.ca/content/view/6616/125/). Purpose of the Dealing
The first test is to determine whether the purpose of the material use truly falls within an acceptable purpose as set out in the Copyright Act. Having individual students print off newspaper articles found on the internet, printing a class set of the articles as a teacher or making a digital copy for the passworded class website would likely satisfy a test for ‘education’, or ‘individual study’.
Character of the Dealing
The number of copies and their distribution is dealt with under the ‘character’ test. A copy that is made once, to meet the need of a single student and destroyed once it is no longer needed is more likely to meet this test than a collection of copies made available to students and public alike. In an online context, a copy placed within a class website (accessible only to students) is more likely to be fair than a copy placed on an open website.
Amount of Dealing
Fair dealing does not necessarily allow copying of complete works. The amount that is fair varies with the type of material. A single journal article or chapter in a book might be fair while a complete novel would not. Works that lose their meaning when taken in portions (like a song or article) may permissibly be copied in whole while larger works or portions of works that are comprehensible in small portions might not be copied under fair dealing.
Alternatives to the Dealing
Copying material may not fall within fair dealing if there was an alternative source of similar material that was not protected by copyright or if the material copied was not reasonably necessary to the object of the work (ie. education). If, for example, you are studying Moby Dick and you decide to post images of several pages from a modern published edition on your blog you may not be engaging in fair dealing because public domain versions (the same text but not typeset and packaged in a copyrighted form) can be found on the internet.
Nature of the Work
The nature, or status of the work can have an impact on whether copying can be considered fair dealing. An unpublished work that receives greater exposure through copying may be more likely to be considered fair dealing while the dissemination of a confidential work may not.
Effect of the dealing on the work
If copying of a work negatively impacts the creators purpose (ie. selling copies) then this will weigh against considering such copying to be fair dealing. This element is not considered sufficient on its own to disqualify a work for fair dealing but is considered in concert with other factors.
Fair Dealing and Media
Few of the emerging guidelines from educational institutions have set guidelines for Fair Dealing copying of video or audio material. Recently guidelines set by some universities have advised that copying of up to 10% of a recorded audio or video piece can be acceptable under the Fair Dealing exception. The AUCC (Association of Universities and Colleges of Canada) has issued a document describing the application of fair dealing to audiovisual works.
You should note that the copying of 10% of an audiovisual work with a Fair Dealing exception requires two prior conditions. First the work from which the copies are being made must be a legal copy (not itself a copyright infringing copy) – for works accessed via a database the institutional license may also prevent copying via Fair Dealing. Second access to the source file needed to make the copy must not involve the circumvention of a digital lock, a technology intended to prevent digital copies. One type of digital lock are the methods used by iTunes to limit the number of times a file can be downloaded and the number of devices that can play a purchased file.
A copy of 10% of a music video that was illegally uploaded to YouTube would not satisfy a Fair Dealing exception. A copy of 10% of a movie, where the DVD was legally purchased by the copier, but an anti-copying technology was defeated in order to make the copy, would also fail to qualify for a Fair Dealing exception.
Where can I find Materials I can use without a License?
Do it Yourself (DIY)
Traditionally, and for many, to this day, resources for teaching and learning have been created by individual teachers as needed, saved, modified and reproduced throughout a teaching career. The copyright on this material is held by the creator, regardless of whether any formal step is taken to assert it. Other educators need the creating educator’s permission to make copies of these resources, though there are exceptions and limits on this copyright. Rather than deal with individual educators that seek permission to use the resources she created, an educator can authorize distribution by licensing it through another agency, by offering various levels of free use with a Creative Commons licence, or by placing the resource in the public domain.
As a producer of educational content you can protect your interest in your resources while sharing them with others by licensing them with a Creative Commons license (a similar licensing scheme for software and associated documentation is the GNU license). These licenses allow for copying without charge but with limitations established by the creator. You can insist that copies be made only for non-commercial uses, that your resource not be modified by the copier, or that you be attributed as the original creator of the resource. Various combinations of these conditions can be established. For example this post has a non-commercial, share-alike, attribution Creative Commons license. This means that others are free to copy it as long as they aren’t using it to make money and they cite me as the original creator of this content. They are free to alter this text but must share any new work created with this work under a similar license. With a Creative Commons license you can share your resources without worrying that someone is going to collect them into a textbook and try to sell them back to you. You can look for Creative Commons licensed works by searching the Creative Commons or ‘open license’ sections of various online collections like Flickr or using the advanced search section of these tools. You can also visit open education resource (OER) repositories or use Google Advanced Search to limit your search results to Creative Commons licensed materials.
In some situations you may be able to find content or works that have passed into or have been specifically placed in the public domain. This means that the creator asserts no sort of copyright or Creative Commons license that the creator’s rights have lapsed. Most public domain works are in the latter category because their copyright has expired. The circumstances by which this happens varies with each jurisdiction and may vary with the type of work. In Canada works typically pass into the public domain fifty years after the death of the author. The Trans-Pacific Partnership trade deal reached in the Fall of 2015 will require the extension of Canadian Copyright to 70 years after the death of the author. Places you might find public domain works include the Internet Archive, provincial, state and national archives, open education resource (OER) repositories.
The growth of resources produced for the web (websites, blogs and social networking and media) and the adaptation of traditional resources for the web (journals, institutions, archives and ebooks) continue to make providing a free or low-cost set of resources for education easier and more effective. The comprehensiveness and depth of material that will be available in the future will depend on two trends, the degree to which copyright law in the future allows works to be used for education, and the growth of alternative publishing regimes like Creative Commons. At the same time selecting and maintaining a collection of web-based resources instead of a traditional textbook or course-pack will continue to require the instructor to search for, analyze and maintain suitable works. Reasonable copyright legislation will encourage educators to provide the widest range of resources while modelling respectful use of intellectual property.
Association of Universities and Colleges of Canada. Application of the Fair Dealing Policy for Universities to Audiovisual Works. September 2013. http://library.ucalgary.ca/files/library/audiovisual_works.pdf
Canada. Copyright Act. http://laws.justice.gc.ca/eng/C-42/index.html
Canada. (2013). About Copyright. https://www.ic.gc.ca/eic/site/icgc.nsf/eng/07415.html
Council of Ministers of Education Canada. Fair Dealing Guidelines. nd. http://www.cmec.ca/docs/copyright/Fair_Dealing_Guidelines_EN.pdf
Di Valentino, Lisa. Review of Canadian University Fair Dealing Policies. Social Science Research Network. 17 May 2013. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2263034
Geist, Michael. Canada Caves on Copyright in TPP: Commits to Longer Term, Urge ISPs to Block Content. 9 October 2015. http://www.michaelgeist.ca/2015/10/canada-caves-on-copyright-in-tpp-commits-to-longer-term-urge-isps-to-block-content/
Geist, Michael. Ed. The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law. Ottawa: University of Ottawa Press, 2013. http://www.ruor.uottawa.ca/en/handle/10393/24103
Geist, Michael. The Supreme Court of Canada Speaks: How To Assess Fair Dealing for Education. 22 August 2012. http://www.michaelgeist.ca/content/view/6616/125/
Geist, Michael. Cdn Fed Court Says No Copyright Infringement For Linking, Posting Several Paragraphs from Article. 25 June 2012. http://www.michaelgeist.ca/content/view/6558/125/
Johnson, Matthew. Fair Dealing for Educators. Media Smarts. 18 April 2013. http://mediasmarts.ca/blog/fair-dealing-educators
Knopf, Howard. AC seeks $26 per university and $10 per college FTE “Mandatory” Tariff in Copyright Board filing . 17 September 2013. http://excesscopyright.blogspot.ca/2013/09/ac-seeks-26-per-university-and-10-per.html
Ontario, Ministry of Education. Policy/Program Memorandum No. 157 – Use of Copyright-Protected Works for Education. 21 June 2013. http://www.edu.gov.on.ca/extra/eng/ppm/157.pdf
Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic. National Post, Warman discontinue appeals in important copyright appeal. 14 February 2014. https://cippic.ca/news/national_post_and_warman_withdraw_appeal
Trosow, Sam. SCC Decisions Provide Clear Guidance on Fair Dealing Policies. 14 July 2012. http://samtrosow.wordpress.com/2012/07/14/scc-decisions-provide-clear-guidance-on-fair-dealing-policies/
Trosow, Sam. Compilation of Announcements for Institutions Opting-out of Model License. 29 June 2012. http://samtrosow.wordpress.com/2012/06/29/compilation-of-annoucements-for-institutions-opting-out-of-model-license/
Trosow, Sam. A Closer Look at Warman v Fournier: Good news for online journalists. 26 June 2012. http://samtrosow.wordpress.com/2012/06/26/a-closer-look-at-warman-v-fournier-good-news-for-online-journalists/
Creative Commons License Copyright for Educators by Keith Webster is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada License. Permissions beyond the scope of this license may be available at http://keithatwork.edublogs.org.