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On our campus, individuals use materials protected by copyright every day. Students quote authors and scholars in their essays and dissertations, instructors show images and graphs or play music for their students in class. Are they infringing copyright? They probably aren't because The Copyright Act includes provisions for fair dealing and exceptions for educational institution and libraries. What is fair dealing? What are the exceptions? Keep reading to find out...
The fair dealing exception, like other exceptions in the Copyright Act, is a user's right. The Copyright Act provides that any "fair dealing" with a work for purposes of private study or research, or for criticism, review or news reporting is not infringement. Although the term fair dealing is not defined in the legislation, there is some guidance provided in the Act. As mentioned above, a use may be considered fair dealing if it is for the purpose of private study, research, criticism, review, or news reporting. Fair dealing allows users to make single copies of portions of works for "research and private study. Please read the Fair Dealing Guidelines and the Fair Dealing Frequently Asked Questions for more complete information.
In order to determine if your use of a material falls under the fair dealing provision of the Act, you must consider the following six criteria:
Is it for research, private study, criticism, review or news reporting? It expresses that "these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users' rights."
How were the works dealt with? Was there a single copy or were multiple copies made? Were these copies distributed widely or to a limited group of people? Was the copy destroyed after its purpose was accomplished? What are the normal practices of the industry?
How much of the work was used? What was the importance of the infringed work? Quoting trivial amounts may alone sufficiently establish fair dealing. In some cases even quoting the entire work may be fair dealing.
Was a "non-copyrighted equivalent of the work" available to the user? Could the work have been properly criticized without being copied?
Copying from a work that has never been published could be more fair than from a published work "in that its reproduction with acknowledgement could lead to a wider public dissemination of the work - one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair."
Is it likely to affect the market of the original work? "Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair."
Educators and instructors are permitted to make use of materials in ways that other users are not for the purpose of instruction on the premises of an educational institution.
In the classroom, educators and instructors can make a copy of a work protected by copyright to be projected in front of the class. Although the Act specifically refers to overhead projectors, it has been interpreted to include PowerPoint presentations as well.
Material protected by copyright can be reproduced, translated, preformed, or broadcast on university premises for a test or exam.
Performances of works such as plays or music can be performed live by students without infringing copyright if the performance takes place on the premises of the school and the audience is primarily students of the school or instructors.
Instructors can play sound recordings for students on the premises of an educational institution. They can also play radio or television programs live when they are being broadcast. It has been interpreted that this, arguably, includes webcasts.
Instructors may copy news and news commentary from radio and television broadcasts and keep the copy for educational use on school premises for up to one year from the date the tape is made. This exception does not apply, however, to documentaries.
Non-profit libraries, archives and museums also have exceptions under the Copyright Act. These institutions may copy published and unpublished works protected by copyright in order to maintain and manage their collections. Examples are making a copy for insurance purposes and to preserve a rare, original work which is deteriorating.
This can be done as long as copies are not commercially available in a medium that meets the institution's needs. Libraries, archives and museums may copy an entire article of a scholarly, scientific or technical nature provided the copy is used for private study or research purposes. Articles in a newspaper or periodical which are not scholarly, scientific or technical can also be copied if the article is at least 12 months old at the time the copy is made, and provided the copy is used for private study or research purposes.
Another category of user to benefit from exceptions is persons with a "perceptual disability." This term refers to someone who has difficulty reading or hearing. Persons with a perceptual disability, or at the request of a person with a perceptual disability, or for a non-profit organization acting for his or her benefit, to copy a work protected by copyright in alternate formats such as braille, talking books or sign language.
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