Monday, February 5, 2018

Copyright fundamentals (and Trench warfare)

Copyright basics
  • By definition, it is the right to copy a creation
  • Must be fixed and it must be original 
  • Exists in every original literary, dramatic, musical and artist work, including print and electronic books, articles, illustrations, photos, songs, computer software, CD-ROMs, videos, digital images
  • Cannot copyright ideas, information, facts, history or news events 
  • Can copyright the expression of ideas, facts, etc. 
  • Copyright generally lasts 50 years after the death of the author and then it falls into the public domain
  • Regardless of origin, copyrighted material used in Canada is covered by Canadian Copyright Law
  • Collectives have been created so that users can acquire, for a fee, further rights
  • Creators’ rights include economics and moral
  • Users’ rights are very limited 

Rights of creators under the Canadian Copyright Act 
  • To reproduce a work 
  • To publish a work 
  • To perform a work in public
  • To publish a translation of the work 
  • To communicate a work publicly via telecommunications 
  • To adapt a work 
  • To rent a computer program and sound recording
  • To authorize other to do such acts 

Rights of users under the Canadian Copyright Act
  • Insubstantial use 
  • Fair dealing
  • Exceptions 
General exceptions
1) Insubstantial use (existed since passage of the 1924 Act) 
  • If a creator controls a substantial part of his/her work, then a user has the right of insubstantial use Problem is that there is no definition of “insubstantial use,” but again international case law suggests 1-2% 
2) Research of private study, criticism or review, reporting or news summary (in force September 1, 1997) 
  • Fair dealing for the purpose of research and private study, provided basic bibliographic information is provided 
  • Fair dealing for the purpose of criticism or review, reporting or news summary, provided the source is provided
    • Problem is that fair dealing is not defined in the Copyright Act; nor does it refer specifically to teaching 
    • Problem is that there are few reasonable examples of case law; however, based on international case law, “fair” seems to mean approximately 2% 
    • Don’t confuse “fair dealing” with the American “fair use,” the latter being far more liberal 

Your use of overheads, opaque projections, black boards, white boards 
A) Copyright exception
  1. Reproduction for instruction
    • Manual reproduction (e.g. handwritten) onto white board, black board, flip charts and overheads
    • Make a copy of an image to project using an overhead projector or other device (e.g. opaque projector, projection unit)
Computer programs 
Permitted acts. 30.6 It is not an infringement of copyright in a computer program for a person who owns a copy of the computer program that is authorized by the owner of the copyright to 

(a) make a single reproduction of the copy by adapting, modifying or converting the computer program or translating it into another computer language if the person proves that the reproduced copy is

(i) essential for the compatibility of the computer program with a particular computer
(ii) solely for the person’s own use
(iii) destroyed immediately after the person ceases to be the owner of the copy, or;
(b) make a single reproduction for backup purposes of the copy or of a reproduced copy referred to in paragraph (a) if the person proves that the reproduction for backup purposes is destroyed immediately when the person ceases to be the owner of the copy of the computer program.

1997, c. 24, s. 18 

Exceptions for off-air taping and performance of television and radio programs
Copying off-air of news and news commentary programs

  • Copy at the time of communication to the public via telecommunications a news or news commentary program, not a documentary or feature film, for a period of one year after which you must either erase the program or purchase 
  • Must complete a record keeping form created by the Canadian Copyright Board
  • A new collective – the ERCC – has been created to collect your money
  • If you continue to have the program beyond one year, then you must pay an approved tariff 
Copying for the purposes of evaluating 
  • Copy at the time of communication to the public via telecommunications any program (excluding news and news commentary programs) and evaluate for a period of up to 30 days, before destroying or purchasing (i.e. you cannot show these programs in a classroom) 
  • Must complete a record keeping form 
  • If you continue to have the program beyond 30 days, then you must pay an approved tariff 
Guidelines for Distinguishing Between News Programs, News Commentary Programs, and Documentaries
No royalty is payable for taping a single copy of a news program or news commentary program provided that that copy is destroyed within one year after the making of such copy. This royalty exception does not apply to “other” programs, such as documentaries and feature films. 

To determine whether a royalty is payable, educators may refer to the following guidelines, which are intended to assist in distinguishing between the three categories of program. The initial guidelines were developed in cooperation with the ERCC and representatives of elementary, secondary, and postsecondary educational institutions. This list has been updated by Manitoba Education, Citizenship, and Youth to reflect the current situation.

  1. A news program is a program reporting on local, regional, national, and international events as they happen, and includes weather reports, sportscasts, community news, and other related features or segments contained within the news program. Examples are The National (the first half-hour only), Ontario Ce Soir, BBC World Report, Le Téléjournal.
  2. A news commentary program is a program containing discussions, explanations, analysis, observations or interpretations of the news and having a preponderance of the following elements: “talking head(s)”; minimal editing; minimal “shelf life” in its original form; and, if in interview or panel discussion format, unscripted responses. Examples are As It Happens, Studio 2, The Editors, Larry King Live, Le Point.
  3. Other programs are programs that are not news or news commentary programming. Feature films and documentaries are examples of other programs. A documentary is a socially relevant program with a creative vision and/or viewpoint and with a preponderance of the following elements: significant research and preparation; pre-scripting; significant editing; and significant “shelf life.” Examples are: Life & Times, Venture, Marketplace, The Nature of Things, Rex Murphy, Les affaires et la vie, D’un soleil a l’autre.

Moral rights under the Canadian Copyright Act
Special rights designed to protect the author’s personality or reputation 

  • Three types: 
  • Moral rights, unlike economic rights, cannot be assigned 
  • Moral rights can be waived
  • Nothing in the act to prevent licensing or moral rights 
Some copyright collectives in Canada 
  • Access Copyright (formerly Cancopy)
  • Audio Cine Films 
  • Canadian Musical Reproduction Rights Agency Limited (CMRRA) 
  • Canadian Private Copying Collective (CPCC) 
  • Society of Composers, Authors, and Music Producers of Canada (SOCAN) 
  • Société québécoise de gestion collective des droits de reproduction (COPIBEC) 
  • Visual Education Canada 
Pan Canadian Schools/CanCopy Licence Agreement 1999-2004
As Extended August 26, 2004 
(Until the Copyright Board rules on the tariff in 2006) 
Authorized purposes
(c) “Authorized purposes” means copying for any not-for-profit purpose within or in support of the mandate of the educational institution in Canada, including:

(i) Educational (including testing and examination activities), professional, research, archival, administrative and recreational activities; 
(ii) Communication with and providing information to parents, school advisory/parent council and other members of the community; 
(iii) Copying related to the production of teacher implementation documents, correspondence school and distance learning courses, curriculum documents, workshop packages, provincial examinations and all other similar copying activity, and 
(iv) Making a reasonable number of copies for reference in or a loan by libraries; 
Permitted copying
  5.1 Permitted Copying: This Agreement Authorizes Copying of either ten percent (10%) of a Published Work, or any of the following parts of a Published Work, whichever is greater: 
(a) an entire single short story, play, essay, article or poem from a book or periodical issue (including a set of conference proceedings) containing other works; 
(b) an entire newspaper article or page; 
(c) an entire entry from an encyclopedia, dictionary, annotated bibliography or similar reference work; 
(d) an entire reproduction of an artistic work (including drawings, paintings, prints, photographs and works of a sculpture, architecture or artistic craftsmanship) from a book or periodical issue containing other works; and 
(e) an entire chapter which is twenty percent (20%) or less of a book. 
Multiple copies 
5.13 Multiple copies: Except where otherwise stated, this Licence authorizes the making of: 
(a) the number of copies which is sufficient to permit each student to have one Copy only for his or her personal study and each teacher to have two Copies; 
(b) the number of copies required for administrative purposes, including communication of information to parents and to the community; and 
(c) a reasonable number of Copies for reference in or loan by Libraries.
Proper citation 
5.11 Notice on Copies: The Licensees shall notify their respective employees and agents that, in accordance with good bibliographic practice, Copies of Published Works shall include, on at least one page, a credit to the author, artist or illustrator, and to the source. 
e.g. John Tooth Looking for Manitoba Government Publications, per the Pan Canadian Copyright Agreement 
e.g. John Tooth “Victory for Users,” Macleans, per the Pan Canadian Copyright Agreement 
Society of Composers, Authors, and Music Publishers of Canada (SOCAN)
  • Music used in classrooms covered by an exception in the Canadian Copyright Act 
  • Music used for “extracurricular” activities is not covered by the Act 
  • SOCAN Letters to school divisions 
    • Music at lunch, recess, at games, at dances
    • License .25/student/year 
Educational Rights Collective of Canada (ERCC)
  • Collective designed to collect revenue from educational institutions for off air taping of TV and radio programs 
  • Debate on the reporting of Cable in the Classroom programs continues (law states you do; CITC states you don’t) 
  • Reporting form can be sent electronically to the ERCC 
  • Viability of the ERCC is still in doubt 
  • Reporting dates: January 31, May 31, September 30 
  • Public Broadcasting in the US 

ERCC – Tariff 

Video and radio programs
  • Home use versus public performances 
  • Hard copy versus duplication rights
  • Canadian Copyright Act exceptions: 
    • Taping of “news and news commentary” programs (one year’s free use in the classroom)
    • Taping of “other” programs (30 day evaluation only) 
  • Cable in the Classroom
    • Copyright cleared programs
  • Prairie Public Television 
  • IRU Catalogue 
    • video programs ($15.00/60 minute tape) 

Where we are in the copyright world generally : (Schools Agreement) 
  • Pan Canadian Schools/Cancopy Copyright License Agreement, 1999-2004
    • The 1999-2004 Agreement was extended on August 26, 2004
    • Agreement was to continue under the same terms and conditions until sometime in 2006 when the Copyright Board will rule on Access Copyright’s proposed tariff of $12.00/per full time student for the period 2005-2009 and on  retroactivity  to August 31, 2004 
    • CMEC Copyright Consortium has hired lawyers to represent Canadian public schools as “objectors” to the proposed tariff and to  retroactivity 
    • There was to be a scheduled joint CMEC/Access survey across Canada of photocopying in schools likely in the 2005 calendar year 
    • The survey was likely to involve some 110 schools in Manitoba and 6 school boards 
    • The survey was to be 10 consecutive school days and Access Copyright photocopier observers was to be present 
    • New Exclusions List for 2004/05, which had been distributed to schools and school board offices 
    • New version of the booklet “Copyright Matters!” 2005: a physical copy was to be sent to each teacher in Manitoba during February 2005 and it was also available electronically on the IRU Copyright web site 

Where are we in the Copyright World (Legal cases) 
  • CCH v. The Law Society of Upper Canada (legal publishers case)
    • The making and transmittal of copies of judicial copyrighted material by library users and library staff was within the intent of fair dealing
    • Balanced approach to copyright by the Supreme Court of Canada
  • Online Music Case (Tariff 22 decision) 
    • Downloading of music for private use and sharing via computer did not constitute copyright infringement
    • Balanced approach to copyright by the Supreme Court of Canada 
  • Privacy Interests 
    • Federal court rules that music recording industry had not presented a sufficient case to warrant invasion of privacy interests of individual Canadians (e.g. to force Internet providers to reveal the music downloading habits of some 29 million Canadians)
  • Canadian Heritage “Interim Report on Copyright Reform: Report of the Standing Committee on Canadian Heritage” (May 2004)
    • Heritage Committee was going to recommend to Cabinet that there be an amendment to the Copyright Act permitting the collective licencing of Internet materials used for educational purposes (e.g. you will have to pay to use the Internet for educational purposes, or try off the Internet) 
    • On February 16th, at a meeting between CMEC Copyright Committee and the Minister of Canadian Heritage, The Honourable Liza Frulla indicated that the copyright legislation to be addressed in June 2005 will not include the educational use of the Internet 
    • o Philosophy is: collectives first; exemptions unnecessary 
    • o Internet address: 
CMEC Position 
Educational Use of the Internet 
Amend the Copyright Act such that an educational institution or a person acting under its authority, including a student, may do the acts listed below in relation to all or part of a work or other subject-matter that has been made publicly available on a communication network, provided the act is done in a place where a student is participating in a program of learning under the authority of an educational institution, is done for educational or training purposes, and it not for profit, and provided that the source is mentioned giving the names of the authors, performer, maker, or broadcaster if provided in the source:
(a) use a computer for reproduction, including making multiple reproductions for use in the course for instruction;

(b) perform in public before an audience consisting of primarily students of the educational institution, instructors acting under the authority of the educational institution, or any person who is directly responsible for setting curriculum for the educational institution; and

(c) communicate to the public by telecommunication to or from a place where a person is participating in a program of learning under the authority of an educational institution. 
Directions for a more user-friendly Copyright Act
1. Position of the CMEC, CTF, CSBA:
  • Since the majority of the material on the Internet is created by authors who are not interested in asserting their copyright and have no expectation of profit, these materials are therefore “publicly available,” that is, they are intended to be used without cost 
  • CMEC proposes to the federal government that there be an expansion of the “fair dealing” exemption to cover the use of “publicly available” material copied from the Internet for educational purposes; this would be followed by a licensing scheme for non-publicly available material 
  • This amendment to the Copyright Act is known as the “Educational Use of Internet”
  • Philosophy is: Exemptions first, Collectives second 
  • Thus, the “fair dealing” defense would also include education and teaching purposes, in addition to research or private study, review or news reporting 
  • The exception would permit students and teachers in day-to-day instruction to copy, perform and exchange copyrighted materials made publicly available on the Internet 
2. Why does education need an exemption? 
  • Obtaining copyright clearance for day-to-day instruction is not possible or practical 
  • Blanket licensing through a collective of “publicly available” material on the Internet is not likely
  • Students and teachers need to be able to use legally (without infringing copyright) the material they find on the Internet if they are to develop the skills needed to participate in a global knowledge economy
  • Students required to acknowledge source 
    • Respect for intellectual property
  • Students and teachers often break copyright law when they use the Internet
  • Copying an image for a school project is an infringement of copyright
  • Copying text to study later is an infringement of copyright
  • Forwarding an email to a student or teacher is an infringement of copyright 

For further information on Copyright in Canada: 

  • Wanda Noel. (1999). Copyright Guide for Canadian Libraries. Ottawa: Canadian Library Association, $44.95, ISBN: 0-88802-294-8. 
  • John Tooth. “CLA Copyright Information Web Site,” Canadian Library Association,
  • Lesley Ellen Harris. (2001). Canadian Copyright Law 3rd Edition, Toronto: McGraw-Hill. ISBN: 007-560-369-1.
  • Lesley Ellen Harris. (1998). Digital Property: Currency of the 21st Century. Toronto: McGraw-Hill Ryerson. ISBN: 0-07-552864-0.
  • Council of Ministers of Education, Canada. (2012) Copyright Matters!: Some key questions and answers for Teachers. Toronto: CMEC. (Bilingual)
  • Wanda Noel. (1996). Copy right! (videocassette) and Teacher’s Guide (1996) For Grades 5-S1. Available for loan or duplication from the Instructional Resources Unit, Manitoba Education, Citizenship and Youth. For Loan #0926, Duplication VT-0362, $12.00

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