FAQ Basics
General copyright information regarding:
- what it covers,
- how long it lasts,
- how you get permission to use copyright-protected material
- how copyright operates internationally.
1.1 What are the laws and rules relating to copyright at Western?
1.2 What does copyright protect?
1.3 How do I know if something is copyright-protected?
1.4 What rights does a copyright owner have?
1.5 What is fair dealing and how does it relate to copyright?
1.6 Does fair dealing include teaching?
1.7 How long does copyright last?
1.8 What is meant by ‘the public domain’? How do I know if something is public domain?
1.9 How does copyright operate internationally?
1.10 I’m from the United States. Is copyright different here?
1.11 How do I get permission to use someone else’s work?
1.12 What are moral rights and what do they have to do with copyright?
1.13 Who owns the copyright in the works I create at Western?
1.14 Are there special rules for scanning?
1.1 What are the laws and rules relating to copyright at Western?
The Canadian Copyright Act, related jurisprudence such as the Pentalogy which were five landmark 2012 Canadian court decisions, as well as various agreements and licences, for example the digital database licences negotiated by Western Libraries, all impact the use of copyright-protected materials at Western.
Canadian copyright law strives to balance creators’ rights to control and be compensated for the use of their works, with users’ rights to access and make use of copyright-protected works. In the Copyright Act, this balance is constructed by articulating "legal rights" for creators and "exceptions" to benefit certain uses under certain circumstances and certain conditions.
The Act has been further interpreted by decisions made by Canadian judiciary in court cases that challenged specific parts of the law. For example the CCH decision in 2004 provided additional clarity in interpreting the Fair Dealing exception.
The University has negotiated licences with copyright owners and publishers, such as subscriptions to electronic journals through Western Libraries. These agreements often include terms which articulate conditions when copying is permitted by the licence. See Western’s Licensed Use Guidelines for additional details.
See Western’s Copyright Decision Map for a guide to navigating copyright laws and rules.
1.2 What material does copyright protect?
The Canadian Copyright Act, section 5 uses the term “work” and states that copyright protection automatically exists in every original literary, dramatic, musical and artistic work when it is created. As articulated in the Act, section 15, copyright also subsists in certain “non-traditional” works, such as performer’s performances, sound recordings, and broadcast signals and these may be fixed.
This encompasses a wide range of things, ranging from books, articles, posters, manuals and graphs, to CDs, DVDs, software, databases and websites.
See Western’s Copyright Decision Map for a guide to navigating copyright laws and rules.
1.3 How do I know if something is copyright-protected?
Two significant factors impact whether a work is copyright-protected.
Term
Copyright protection happens automatically when a work is created, however it does not last forever. Terms of copyright are detailed in the Copyright Act, sections 6 to 14. Protection lasts in most cases for the life of the creator plus 50 years after which it is often referred to as being in the ‘public domain’. Translations or annotations of works are also copyright-protected. Copyright also subsists in certain ‘non-traditional’ subject matter, such as performer’s performances, sound recordings, and broadcast signals, where the clock generally starts from the first performance of the work.
See Western’s Term Protection Guidelines for additional details.
Substantiality
The Canadian Copyright Act, section 3 grants the creator of a work the “sole right to produce or reproduce the work or any substantial part thereof in any material form whatever”.
Users therefore have the right to copy insubstantial portions of copyright protected works without seeking clearance, paying fees, or looking further to other means in order to copy. Insubstantial amounts do not fall under copyright protection at all.
However, the Act does not precisely define substantial. There is no threshold number or percentage of a work that serves as a universal tipping point triggering the need to seek clearance in order to copy. Case law applying the Act can assist in clarifying ‘substantiality’. Specifically in the Warman v. Fournier, 2012 s.23 ruling the Federal Court offered the following five considerations to assist in determining what constitutes substantial:
Whether a substantial part of a work has been reproduced is a question of fact and involves a qualitative as well as quantitative analysis. The relevant factors to be considered include:
- the quality and quantity of the material taken;
- the extent to which the respondent’s use adversely affects the applicant’s activities and diminishes the value of the applicant’s copyright;
- whether the material taken is the proper subject-matter of a copyright;
- whether the respondent intentionally appropriated the applicant’s work to save time and effort; and
- whether the material taken is used in the same or a similar fashion as the applicant’s: U & R Tax Services Ltd v H & R Block Canada Inc, [1995] FCJ No 962, at para 35.
See Western’s Substantiality Guidelines for additional details.
1.4 What rights does a copyright owner have?
As stated in the Copyright Act, section 3 copyright is the sole and exclusive right of a copyright owner to produce, reproduce, perform, publish, adapt, translate and telecommunicate a work, and to control the circumstances in which others may do any of these things. These rights are subject to certain exceptions under the Copyright Act which balance the copyright owner’s interests with the public interest in allowing use of works for particular purposes. Conditions and limitations generally apply to specific purposes.
1.5 What is fair dealing and how does it relate to copyright?
One of the most significant exceptions to the Copyright Act is Fair Dealing, which sanctions copying portions of works without the need to secure clearance from the copyright owner.
In order to qualify under the fair dealing exception, copying must satisfy two broad conditions. The first considers the purpose of the dealing, as stated in the Act itself. The second focuses on the scope of the dealing as stated in the 2004 Supreme Court CCH ruling. Together these conditions factor into establishing degrees of fairness and subsequent use without seeking specific clearance.
Purpose
As articulated in the Act, the activity for which the copying is done must be for one or more of these specified purposes:
- research,
- private study
- education
- parody or satire
- criticism or review
- news reporting
The use of or ‘dealing’ with a copyright-protected work at Western will typically be for research or education and thereby satisfy the purpose condition.
Scope
In its landmark CCH – Law Society decision in 2004, the Supreme Court of Canada identified six factors that are relevant in determining the scope of the dealing and subsequently whether or not it is fair. These factors are:
- purpose of the dealing
- character of the dealing
- amount of the dealing
- nature of the work
- available alternatives to the dealing
- effect of the dealing on the work
The relevance of the factors depends entirely on the context. Sometimes, certain factors will be much more significant than the others. It is also not necessarily the case that all six factors need to be satisfied.
Follow Western's Fair Dealing Analysis to apply the fair dealing exception to particular situations and see Western’s Fair Dealing Exception Guidelines for additional details.
1.6 Does fair dealing include teaching?
Yes.
The Copyright Modernization Act (2012), expanded the purposes specified in the Fair Dealing Exception to include education.
Follow Western's Fair Dealing Analysis to apply the fair dealing exception to particular situations and see Western’s Fair Dealing Exception Guidelines for additional details.
1.7 How long does copyright last?
In Canada, copyright generally lasts for the lifetime of the creator, plus 50 years.
See Western’s Term Protection Guidelines for additional details.
1.8 What is meant by ‘the public domain’? How do I know if something is public domain?
Being in the “public domain” refers to works for which the term of copyright protection has expired or where the copyright owner has made a clear declaration to waive their rights as defined by the Act with the intention that the work is freely and openly accessible to all.
It can get complicated however. For example, copyright-protection for Shakespeare’s plays expired long ago. However many of the published editions of Shakespeare plays contain added original materials such as annotations, footnotes or prefaces that are copyright-protected because the authors have used skill and judgment to produce this new material. This creates a situation where copyright-protection exists for the additional original material, but not in the underlying text of the play for which copyright-protection has expired.
See Western’s Term Protection Guidelines for additional details.
1.9 How does copyright operate internationally?
By virtue of international conventions, copyright is recognized internationally but its application is jurisdictional. Canadian laws and rules therefore apply in Canada.
...for Creators
Generally, your copyright will be protected in other countries. However, since copyright protection is governed by the laws and rules of these other countries, there may be some differences from the level of protection you would expect in Canada. If you’re concerned about the use of your work by someone in another country, you will need to check the copyright laws of that country, to confirm whether infringement has occurred.
...for Users
Canadian copyright law applies to use of a work created by someone from another country in research, teaching and learning at Western. This can have significant impact. For instance in Canada the work of American authors passes into the public domain 50 years following their death, even though in the US the term of copyright-protection is life plus 70 years.
1.10 I’m from the United States, is copyright different here?
Yes, copyright laws in the U.S. and Canada are different.
For example, the U.S. copyright law has a doctrine known as ‘fair use’ which differs from the Canadian ‘fair dealing’ exception. Term of copyright protection in the US is generally life of the creator plus 70 years, rather than 50 years in Canada.
If you are from the U.S. or are collaborating with a U.S. researcher, keep in mind that your dealing with copyrighted materials in Canada is subject to Canadian copyright laws and rules.
1.11 How do I get permission to use someone else’s work?
You ask.
If after following Western’s Copyright Decision Map your analysis reveals your intended dealing is not supported, seeking clearance from the copyright owner is required before reproducing the work.
Sometimes collectives such as SOCAN or Access Copyright manage copyright clearance and arrange transactional (pay per use) licences. If the copyright owner is easily identifiable and locatable, it can be easier to contact them directly. Many times, copyright owners will give permission to academic users without requiring payment.
See Western’s Seeking Clearance Guidelines for additional details.
1.12 What are moral rights and what do they have to do with copyright?
Outlined in the Copyright Act, sections 14.1 - 14.2, moral rights are additional legal rights held by authors of copyright-protected works and performers of copyright-protected performances.
They include the right to attribution as the creator of the work. Acknowledging the source is always necessary for us at Western in all instances when we use the work of someone else in our research, teaching and learning, not only for copyright reasons but also to comply with Western’s policy on plagiarism.
Moral rights also extend to the right to protect the integrity of the work and the reputation of its creator or performer as applicable.
These rights are important for creators and performers to ensure they receive appropriate recognition and to prohibit any prejudicial changes to their works.
1.13 Who owns the copyright in the works I create at Western?
Western has policies relating to copyright ownership and use of works created at Western, set out in various collective agreements.
However, ownership of works may be affected by agreements with industry sponsors, joint authors, publishers or others who may have an interest in the works which they have helped to create or fund. Ultimately, ownership will depend on the specifics of your situation.
1.14 Are there special rules for scanning?
No. Since you create an electronic or digital copy of the work, scanning a copyright-protected work is subject to the same rules as any other dealing.
Unless otherwise indicated, content on Western's copyright website is licensed under
a Creative Commons Attribution-ShareAlike 4.0 International Licence.
Created 02/26/2014
Updated
Adapted with permission from UBC Copyright FAQ: Basics
