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FAQ about Copyright in the Classroom
Prepared by Marcel Mongeon, Executive Director and Legal Counsel, Office of Research Contracts and Intellectual Property
Copyright is governed in Canada by the Copyright Act. (A complete copy of this act can be found at: http://laws.justice.gc.ca/en/c-42/; excerpts from the Act can be found below.) The Copyright Act creates a system that protects original expressions in written, visual, aural and other forms in addition to other derivative rights such as performance and retransmission of an original work. Copyright – which does not need to be registered in Canada to be effective – secures certain rights to the owner of an original work for a period of time usually determined by the life of the original author of the work. These rights – which for written works are found in section 3 reproduced below – include the right to control any form of copying of the original work, even without remuneration or commercial gain. Canada’s copyright system also includes the concept of ‘moral rights’ which protect the original author’s right to protect the integrity of the work, or to be noted as the author of the work or to remain anonymous. (See sections 14.1 and 28.2 below)In Canada, the term of copyright subsists for a period of 50 years after the death of the original author or, in the case of a collective work, the last to die of them. In the case of an anonymous work, copyright subsists for 50 years from the first publication. Different rules as to term apply in different countries.In a classroom setting, most of the material being used is likely subject to copyright. For example, textbooks, journal articles, PowerPoint presentations, exam questions, and classroom problem sets would all be works within which copyright would subsist. Such works can only be used in a classroom provided that there is implied or explicit permission to do so. Implied permission, for example, can be found in the right of students to take notes of the instructors own material. Other permissions may be from specific exemptions in the Copyright Act, certain ‘blanket’ agreements such as the CanCopy licence described below or specific written permissions obtained on a case-by-case basis. A recent publication of AUCC entitled Copying Right can be found at: http://www.aucc.ca/_pdf/english/publications/copying2002_e.pdf. Further information on this subject at McMaster University can also be obtained by calling the Office of Research Contracts and Intellectual property at ext 22873. 2. Do I have to use a copyright notice like: © Copyright, 2002, Marcel D. Mongeon, on my material to ensure that I am protected by copyright? No. Canadian copyright law automatically protects all original works without any other formalities such as registration or notice. However, if a notice provision is made, higher damage awards may be made by a court in the case of a law suit taken to prevent or take action over an infringement.Even though formal notice is not required, prudent practice is to establish a regular policy of using copyright notices if it is believed that there is a potential of undesired copying. In some cases where there is no concern about the use of the material by others, such notices may be unnecessary. 3. What international copyright issues do I need to worry about in a classroom environment? As a result of a number of different international agreements that Canada has entered into, copyright protection for Canadian residents is automatically extended to most of the world’s countries without any more formalities than Canadian law requires. In other words, because no registration or labelling is required in Canada, another country cannot require such formalities of a Canadian for their copyright to be recognized in that foreign country.The other side of the international coin is that Canadian residents must also be sensitive to the fact that international works are likely subject to Canadian copyright protection. Just because a work comes from another country does not mean that it can be used with impunity in Canada. 4. I have created some course material. Do I own it or does the University? Can the University give my course material to someone else? Can another instructor use the material? McMaster’s Intellectual Property Policy makes it clear that the copyright in teaching material prepared by the instructor is the property of the instructor. As the instructor is the owner, the instructor can direct its use which implies that the University cannot ‘give’ the material to someone else. However, even though the instructor is the owner, by teaching courses at the University, they give certain implied licenses to both the University and the students to use the material. For example, it is reasonable that a student should be able to make copies of the notes provided in class by an instructor. It would not, though, be reasonable for that student to then be able to give those notes to students in a subsequent class. The University, as a part of its oversight responsibilities, would also be reasonable in asking for and retaining in its files, copies of material used in classes and using the same as a part of that oversight responsibility. If another instructor requests material that I have created I still retain ownership in copyright. However, this material may be made available to others under specific circumstances. For example, another instructor may be granted access to the material provided that the use contemplated for such material is directly related to the University and is not for personal use. Distribution of the teaching material by the University is subject to approval from the original author and therefore permission must be obtained before any copies are made from the university file. In addition, original authorship of any materials obtained must at all times be acknowledged by the instructor. A different situation occurs when teaching material is prepared by someone other than the instructor. In that case, the Policy makes it clear that as the preparation of the material involved a significant use of University resources, the material will be owned by the University. 5. What is ‘fair dealing’ and how does that differ from ‘fair use’? The concept of ‘fair use’ comes from American copyright law and is not applicable in Canada. Accordingly, care must be made when reviewing material which describes the rights under American law for ‘fair use’. In Canada, the concept of ‘fair dealing’ is extremely limited. In addition, there is a lack of court cases on the subject which would help to define it. The concept is found in section 29 of the Act and provides: “Fair dealing for the purpose of research or private study does not infringe copyright.”It is believed that the right is extremely limited and should be considered in the context of the words ‘private study’. Accordingly, it is believed that this exception has limited application in the classroom setting. 6. When does material become ‘public domain’ and what does that mean I can use? Material in which copyright does not subsist either through specific waiver or expiration of copyright is said to be in the ‘public domain’. Such material can be freely used without permissions or royalties. One excellent source of public domain material is material that was produced by the US government. Because of a specific provision in US copyright law that all such works should be freely available to the public, they are in the public domain and can be freely used. Unfortunately, there is no such provision in Canada where most levels of government assert their copyrights. 7. What is the ‘education exemption’ in the Copyright Act? Section 29.4 of the Act contains an exemption for an educational institution: “(a) to 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.” There are also a number of extremely limited exemptions for the reproduction of certain newscasts and recordings of other performances.In all cases, it should be remembered that the exemption is limited to the specific wording of the Act and that any cases of doubt should err on the side of not using the material. 8. Can I scan in images from a textbook and use them as a part of a PowerPoint presentation to a class? To the extent that this activity falls within the exemption in the previous section, yes. However, it should be noted that then putting the PowerPoint slides up on a web site – even password protected – would not be allowed. In addition, the exemption does not cover making handouts of the slides. 9. If I am the original author of a piece of work and I alter it, will it still be copyrighted? What happens if I am not the original author and I alter an existing work? As the original author, you have the right to alter your own work. In this case, the new work will be considered original and it will be copyrighted.The situation is different if you are not the original author and you attempt to alter an existing work created by another person. You will be violating the original author’s copyright if you fail to obtain their permission and comply with their conditions. In addition, it would be prudent to give credit to or reference the original source of the material. Facts and ideas are not copyrighted; however the expression of those facts and ideas are copyrighted. For example, if a person has written an article about flower arrangements you are free to write on the same topic; however, your work must be expressed using your own style and it must be completely different from the original source. Please refer to Section 3 of the Copyright Act (excerpts reproduced at the end of this document) for further information. 10. What rights does McMaster University’s CanCopy license give to duplicate materials for classroom use? McMaster – as with many other universities – has obtained a blanket licence for certain types of use. McMaster’s full agreement can be found at: http://library.mcmaster.ca/about/cancopy.htm. Generally, the agreement allows certain print, not electronic, copies of works to be made. These require the use of an overlay on the material – available at all photocopiers – and limits on the total amount of material that may be copied. There are also some very specific exclusions under this licence for the works from specific publishers. 11. Am I violating copyright if I am making copies but not selling them for a profit? Yes. Copies made and distributed free of charge are still considered to be a violation of copyright since this practice may result in serious damage. This is especially true where the property copied has commercial value and the copyright infringer’s actions jeopardize that value. For example, this situation may result if you are copying beyond the limits granted by the CanCopy license discussed in FAQ #10. 12. How can I make electronic versions of material available to my students? The CanCopy licence does not cover electronic distribution of material. Legally, any such distribution is an infringement of copyright if it is done without the permission of the copyright owner or the work is in the public domain. Accordingly, even the use of a password protected web site (e.g. WebCT, LL [Learnlink]) accessible only by students is not sufficient to create an exemption under the Act. There are a number of ways in which electronic material might be legally made available to students. For example, there are now many site-licensed subscriptions to journals. Rather than distributing a copy of a PDF of an article on a course web site, it would be preferable to provide a link to that same article accessible on the McMaster campus or through the proxy server. It should be noted that a license allows you to use the work for a limited and specific purpose and you would be required to follow the terms of the specific agreement. For example, if your subscription with an on-line journal only allows you to make one paper copy of a journal article, you will need to contact the subscription office to find out how to obtain more copies. The most preferable way is to ask for permission from the copyright owner. This can be done directly by communications to the original publisher. In addition, a new service available at: http://www.accesscopyright.ca can assist in obtaining rights for some types of material. 13. What is an Open Publication Licence? An Open Publication licence allows copyrighted work to be reproduced and distributed in whole or in part and in any medium (including electronic) provided that conditions, which are determined by the copyright holder, are followed. It is important to understand that a copyright holder retains copyright in the material available through an Open Publication Licence. The difference is that copyright holders are allowing copies of their work to be used, made and/or distributed for specific uses and under specific conditions. If the conditions of the Open Publication Licence are breached the copyright holder may make a copyright infringement claim. A number of web sites offer Open Publication Licences. Two such sources may be found via an Open Content Open Publication Licence and through the Creative Commons web site. Both web sites offer similar features and conditions that may be applied or removed depending on the specific circumstance. Some of the features available via an Open Publication Licence include the ability for the material to be used, reproduced and distributed in any electronic and print form as long as the terms and conditions of the licence agreement are met and the original author is credited. Some licences allow for the possibility of commercial distribution of Open Publication-licensed materials. An Open Publication Licence may also allow for the possibility of modification and redistribution of derivative works. There are specific requirements to be met in order to exercise this option. It is possible to prohibit distribution of modified works but this must be expressly outlined in the Open Publication Licence agreement. The Licence may also be designed to include an option whereby any work derived from Open Publication licensed material must be posted and made available to others using a similar Open Publication licence. For information on the terms and conditions of the Open Content Open Publication Licence please visit http://www.opencontent.org/openpub/. For information on the Creative Commons Open Publication Licence please visit http://www.creativecommons.org/. 14. Does an Open Publication Licence allow me to make materials available on a password protected web site that is accessible only to students (e.g. WebCT and LL [Learnlink])? Material may only be posted on a password protected web site via an Open Publication Licence if permission is granted and terms of the licence are accepted by original owners of the copyright. Therefore, every person who holds copyright in any material available under these password protected web sites must be aware and agree that this material will be used subject to the terms and conditions of the Open Publication Licence. As discussed above, the specific use granted to others for copyrighted material under an Open Publication licence may be uniquely designed or it may be modified by altering specific terms or conditions of the licence. All materials posted on the password protected web site will be clearly identified as a work that is available for use under the Open Publication licence. In addition, the full text of the licence will immediately follow the work. 15. Do I need permission to link to someone’s web site? Although permission is always the most prudent course of action, there is likely no infringement of any rights if linking is done to the normal entry points for a web site. If the notices on a particular web site do indicate that they do expect permission to be obtained for even these ‘public’ entry points, then such permission should be obtained. Linking should not be done to individual pictures or component of a web page in most cases. One of the biggest copyright myths is that material on the internet cannot avail itself of copyright protection. Nothing could be further from the truth. Although it may be difficult for someone to actually detect and police any copying of material on the internet, posting does not in itself waive any copyrights. 16. Is an email sufficient proof of ‘written permission’ to use someone’s copyright-protected material? Email is a sufficient medium for receiving permission to use someone else’s copyrighted material. Copies of such email should be kept and, if possible, original letters should eventually be exchanged. 17. Who owns intellectual property created by students and university staff? What rights do the students, staff and the university have to this intellectual property? McMaster’s Intellectual
Property Policy makes it clear that the University
is the owner of any newly created or discovered
intellectual property unless it is subject to exceptions
described in the Policy (which are described below)
for various personnel depending on their job title
and function (e.g. teaching staff, non-teaching
staff, and students). Acceptance of the terms and
conditions of the Policy is a condition of employment
or enrolment of all personnel, students and all
persons who are permitted to use any facilities
of the University that are not normally available
to the general public. Teaching Staff Members: 18. Excerpts from the Copyright Act (Canada) 3. (1) For the purposes of this Act, "copyright", in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right
14.1 (1) The author of a work has, subject to section 28.2, the right to the integrity of the work and, in connection with an act mentioned in section 3, the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.28.1 Any act or omission that is contrary to any of the moral rights of the author of a work is, in the absence of consent by the author, an infringement of the moral rights.28.2 (1) The author's right to the integrity of a work is infringed only if the work is, to the prejudice of the honour or reputation of the author,
(2)
In the case of a painting, sculpture or engraving,
the prejudice referred to in subsection (1) shall
be deemed to have occurred as a result of any distortion,
mutilation or other modification of the work.
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