The Copyright Act provides exceptions to copyright in particular circumstances and for specific user groups. These add to, rather than replace, the fair dealing provision. That means that if a copyrighted work qualifies for use under fair dealing, you would not need to look to an exception or consider restrictions associated with an exception. If, however, a given use does not qualify when applying the fair dealing criteria, an exception may provide options.
Among the exceptions are those for educational institutions, libraries, archives, museums and persons with disabilities.
Use of Works on the Premises of an Educational Institution
These exceptions apply to educational institutions and those acting under their authority. Use is restricted to the premises of the educational institution (including online lessons - described below) and must be for an educational purpose without a motive of gain, except for the recovery of costs, including overhead costs. The source of the works used should be a legal one.
The education exceptions in the Act allow:
- The copying of copyrighted content for the purpose of display, such as in the classroom or in a lesson. This ranges from manually copying content onto a white board to digitizing content for display (including in a PowerPoint). If the content is available commercially in a medium that is made for the purpose of in-class display, then this must be purchased or alternate content used.
- The use of copyrighted content in tests or examinations. Again, if the content is available commercially in a medium made for the purpose of a test or examination, then that would need to be purchased or alternate content used.
- The playing of video works (New - public performance rights are no longer required).
- The playing of sound recordings.
- The live performance of works where the performers are primarily students for an audience primarily made up of students and staff of the university. The performance may include sound recordings as well.
- The performance of a live radio or television broadcast at the time of its broadcast.
- The recording of television and radio broadcasts at the time of their broadcast to be performed in class at a later time. As of January 2014, copies may be kept and performed indefinitely without the need to pay a royalty.
Communicating Lessons by Telecommunication
A new provision of the Copyright Act (section 30.01) allows the educational exceptions for presentations and performances above to apply online. This provision is intended to remove barriers to the use of content in online education and give equal access to classroom content for online students.
In many cases you will be able to rely on fair dealing as the basis for providing most commonly used classroom content instead of using an exception, in class or online (see the MacEwan University Fair Dealing Guidelines for details). Due to the conditions of this exception, it is recommended that you review your options under the Guidelines first before seeking to provide content under this provision.
MacEwan Library eReserves provides a streaming video and audio service based on this exception that fulfills the conditions listed below. Faculty can submit requests through eReserves to have all or part of a video and audio work made available as a stream to their classes.
Conditions that apply to the provision:
- Content must be provided in the form of a lesson. This could be a live virtual classroom session or content that forms part of a lesson posted in Blackboard and eReserves.
- Reasonable technical protection measures (TPMs) must be used to help limit access to and communication of the lesson to students in the class.
- The lesson must be destroyed by the institution 30 days after the final course evaluations.
- Students must destroy any copies of the lesson they have made 30 days after the final course evaluations.
- You cannot break a technical protection measure (TPM or "digital lock") on a digital work - for example, breaking a lock in order to extract the digital data to create a streaming copy or a clip of a video or audio work.
If you think this provision applies to how you would like to use a work, please contact the Copyright and Licensing Office first for assistance.
Use of Work Available Through the Internet - the Internet Exception
A new exception in the Copyright Act allows the reproduction, performance and communication (such as through Blackboard or eReserves) of works from the Internet by faculty and staff of the university for an audience that consists primarily of students or staff of the university. A citation of the source needs be provided as well as the name of the author, performer, maker or broadcaster.
Please note the following:
- This exception applies to freely available Internet content.
- This exception does not apply if you know or should have known that the work was posted without the consent of the copyright owner.
- A website or individual work that has a technological protection measure (or "digital lock") that restricts access or is behind a paywall may not be used under the exception.
- Websites or individual works that have a clearly visible notice that specifically disallows educational use would not be able to be used.
- Websites that require you to click to agree to terms and conditions prior to giving you access to content may restrict your ability to use the content under the exception. Check the terms and conditions.
- Do not post content used under the exception to public websites. The exception allows distribution to an audience that is primarily students and staff of the university. Class handouts, posts to Blackboard or inclusion in a Bookstore or department coursepack would all qualify.
Please Note: Library databases will often give automatic access to content during a Google search. This will often have a "GetItMacEwan" option or the MacEwan logo will appear on the item page. The access and use allowed for this content is governed by the contract terms for the database. Some contracts allow, for example, posting content to Blackboard, others only to provide a link. Send citations to the Copyright and Licensing Office to see if the contract allows you to use an item how you want or, alternatively, provide your students with a Library persistent link.
Non-Commercial User Generated Content
The use of copyright-protected works in a new original copyright-protected work created by an individual, solely for non-commercial purposes, does not infringe copyright. The new work can be disseminated to the public without infringing copyright. The exception applies as long as certain conditions are met:
- the source is mentioned, if it is reasonable to do so - including the author, performer, maker or broadcaster.
- the source is (or there is reasonable grounds to believe it is) a non-infringing copy.
- the use of the work does not have a substantial adverse effect, financial or otherwise, on the existing work - including that the new work does not replace the existing work.
This exception allows for uses of copyright-protected works in a new context. It is commonly described as the "mashup" or "YouTube" provision as it allows an individual to use samples of copyrighted audio and video in a home video and then post it to the open web without infinging copyright. The provision is not specific to audio and video, however. The provision is open ended enough that it could apply in any situation where works are used by an individual in a new work for non-commercial purposes. Students can benefit from this provision as they are able to post multimedia assignments that incorporate copyrighted works to the web.
Sites such as YouTube and Facebook are subject to U.S. copyright law and the Digital Millennium Copyright Act (DMCA). The DMCA allows copyright owners to demand any U.S. based website to takedown content that they claim is infringing. U.S. law requires that the content be removed immediately. There are options to have the content reposted. YouTube, for example, offers the opportunity to request that content to be reinstated. This can be done under the fair use provision of US copyright law. See here about the process for making a request.
Persons with Perceptual Disabilities
The conversion of a work to a format suitable for the needs of an individual with a perceptual disability is allowed under the Copyright Act and may be made without permission. This exception does not apply if the work is available commercially in an appropriate format. The facilitation of this by staff of an educational institution is fair dealing. This exception does not extend to video works or the creation of large-print works in paper format.
The new Copyright Act provision prohibiting breaking of technical protection measures on digital content (the "digital locks" provision) does not apply to persons with perceptual disabilities or those acting on their behalf to create an alternate format copy of a work.
Libraries, Archives and Museums
The Copyright Act provides specific exceptions for libraries, archives and museums. Under this exception, a university library may:
- make a copy for the purposes of cataloguing, internal record keeping or for insurance purposes or police investigation.
- make a copy for the purposes of restoration.
- use digital technology to deliver an inter-library loan copy of a copyright-protected work.
Provided a replacement copy is not commercially available in a medium and of a quality that is appropriate for these purposes, a university library may also:
- make a copy of a work "if the original is rare or unpublished and is deteriorating, damaged or lost."
- make a copy of a fragile document or recording for on-site consultation if the original cannot be viewed, handled or listened to, because of its condition.
- make a copy if the original is in an obsolete format, or is in danger of becoming obsolete, or the technology to use the original is unavailable, obsolete or is becoming obsolete.