The Balancing Act: User Rights
This module simplifies a very complex subject. This module is offered for information only, and is not a substitute for legal advice.
Copyright benefits society in two ways. By providing creator rights, copyright encourages the production of new works to expand knowledge. By providing user rights, also known as exceptions to infringement, copyright facilitates the use and distribution of works, subject to certain conditions and for certain purposes.
Let’s look at some of the exceptions that are relevant in instruction.
The Copyright Act provides general exceptions for all Canadians and specific exceptions for particular groups, including non-profit educational institutions, libraries, and persons with perceptual disabilities.
The fair dealing exception allows all Canadians to use copyright-protected works for certain purposes without permission from the copyright owner and without payment.
Let’s look a little closer at the fair dealing exception.
To qualify for fair dealing, two tests must be passed.
First, the “dealing” must be for one of the allowable purposes stated in the Copyright Act. These are research, private study, education, parody, satire, criticism, review or news reporting. Use of a copyright-protected work for teaching will typically fall under the education or research and private study purposes and pass the first test.
Second, the “dealing” must be “fair.” The Copyright Act does not define what is or what is not fair but the Supreme Court of Canada has identified six factors that may be used to determine whether or not the dealing is fair. It has also made it clear that not all fair dealing factors will apply in all cases and not all have to be determined to be “fair” in order for the overall dealing to be “fair”.
The six factors are
- The purpose or goal of your use. This asks what the real purpose or motive of the user is when reproducing or distributing a work. A non-commercial purpose is more likely to be fair.
- The character of your use. This asks what you intend to do with the work. A single, one-off copy is more likely to be fair than multiple, widely distributed copies.
- The amount you are using. A small portion tends to be more fair than a large portion of a work. No more of the work should be used than is reasonably necessary to achieve the purpose of the dealing.
- Whether there are alternatives to the use. Your use is more likely to be fair if there were no reasonable alternatives to making the copy. However, the availability of a licence is not a factor in determining whether other alternatives should have been used instead.
- The nature of the work being used. Copying works that are not confidential or were intended to be widely shared is more likely to be fair.
- The effect on the market for the original work. Copying will tend to be fair if it has no detrimental impact on sales of the original.
You can evaluate your intended use of copyright-protected materials with these tests. To make evaluation easier and consistent, many universities have adopted fair dealing policies or guidelines. Follow your institution’s policies or guidelines.
If you find you need to exceed the guidelines or need assistance understanding them, contact the person designated by your university to answer copyright questions or check your institution’s copyright guides.
These exceptions are available to you as an educator under the authority of your institution.
They are useful because they sometimes offer you more clarity and certainty than the general fair dealing exception, but each of these is subject to important additional conditions and limitations. Examples include:
- Reproducing a Work for Instruction, which allows you to reproduce a work, or do any other necessary act in order to display it for the purpose of education or training on an institution’s premises;
- Reproducing, Performing or Communicating a Work for Tests and Exams, which allows you to reproduce, translate, perform in public or communicate to the public by telecommunication, a work as required for a test or exam;
- Performances by or for Students, which allows for the live performance in public of sound recordings, audiovisual works, and lawfully received TV, radio, or Internet content; and
- Works Available Freely Through the Internet, which is a broad exception that allows you to reproduce, transmit, or perform works available freely through the Internet for educational or training purposes.
In limited circumstances, such as those involving student-created works, the non-commercial user-generated content exception may be useful, because it allows individuals to use existing works to create a new original work for non-commercial purposes.
You may find these exceptions, as well as the terms and conditions for their use, interpreted in your institution’s copyright policies or guidelines. These resources should address such issues as the amount that can be copied and the requirement for citation and in some cases include retention and destruction requirements. Refer to those resources for further guidance.
As always, refer to your institution’s copyright policies and guidelines, if available. If you’re not sure how to apply them or have questions on the educational exceptions, ask the person or office designated by your university to answer copyright questions or check your institution’s copyright guides. Your university library is a good place to start.
Go to Module 6.