Copyright and Fair Dealing
First, check if copyright applies. Some uses of works would be insubstantial and not be a copyright issue (blog and social media posts are examples). Some works are in the public domain and can be used in their entirety or adapted (Pride and Prejudice and Zombies is an example of an adaptation). Check the Copyright Basics page for more information.
If copyright applies, you may have options under fair dealing. Fair dealing (similar to fair use in the United States) allows the copying or communication of a substantial portion of a copyrighted work or in some cases a whole work for the purposes of research, private study, criticism, review, news reporting, education, parody and satire as long as it qualifies as fair. The Copyright Act does not explicitly define what is fair. Fairness is judged by taking into account the factors in a given situation.
Fair dealing applies to many uses of works for personal use. In most cases, an individual would be making a single copy from a work for their own research or private study. A single copy would be more fair than making multiple copies and distributing them, or communicating a digital copy to multiple recipients (such as by posting to the web). That said, it would be within your rights to post an appropriate amount from a work to a website, such as a blog, especially if it is for additional purposes such as criticism or review.
The amount copied will affect whether or not a use is fair. Copying an entire book for your personal use would be very unlikely to be fair, but, depending on the factors, copying a couple of chapters from a book for a research project would probably qualify. However, copying multiple chapters of an assigned text, for example, instead of purchasing it would tend to be unfair. In some cases it may be fair to copy an entire work, such as a journal or magazine article, photograph or poem.
The Canadian Supreme Court has addressed fair dealing and user rights in a number of rulings since 2004. The Court has stated that the fair dealing purposes must be given a broad and liberal interpretation. Research, for example, does not have to be the traditional scholarly or creative endeavour, but can simply be an individual accessing and copying material out of an interest in the topic. This means that fair dealing applies to all users and in many contexts.
In 2004, the Supreme Court provided a six factor test to help with determining whether copying is fair. Apply the test below to help assess whether a use (or dealing) is fair. If you are unsure if fair dealing applies, contact the Copyright Specialist for advice.
The Six Fair Dealing Criteria: CCH v. Law Society of Upper Canada (2004)[1 S.C.R. 339]
The Canadian Supreme Court ruling, CCH v. Law Society of Upper Canada(2004)[1 S.C.R. 339], provided a significant clarification of fair dealing and helped emphasize the balance between the rights of copyright holders and users. The ruling established a two step test to help determine if a dealing (or use) with a work is fair.
First, Is the dealing for research, private study, criticism, review, news reporting, education, parody or satire? It expresses that "these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users' rights." If the copying falls into one of these broadly construed purposes, then the following six factors must be considered:
- The Purpose of the Dealing This factor looks at the actual purpose of a particular use within the broader purposes outlined above. Is the purpose commercial or non-profit? Is it for entertainment purposes? is it to encourage engagement or discussion? Is there a public interest purpose in the dealing?
- The Character of the Dealing 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?
- The Amount of the Dealing 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.
- Alternatives to the Dealing Was a "non-copyrighted equivalent of the work" available to the user? Could the work have been properly criticized without being copied?
- The Nature of the Work 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."
- Effect of the Dealing on the Work Is the dealing likely to substantially affect or replace the market for 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." The availablity of a licence, or the work for sale, does not preclude a finding of fair dealing.
The factors are non-exhaustive. That means other facts in the case can be used to determine fairness: “These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing. In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair”.
The Copyright Act also provides exceptions to copyright for particular uses and users. You would use an exception only if fair dealing does not apply to the use:
Non-Commercial User Generated Content
This exception allows the use of copyright-protected works in a new original copyright-protected work created by an individual, solely for non-commercial purposes. The copies can be included and the new work communicated 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 the use of copyrighted works in a new context. It is commonly described as the "mashup" or "YouTube" provision as it allows samples of copyrighted audio and video to be used in a home video and then make it available on the open web without infinging copyright. The provision is not specific to audio and video, however. It 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.
Even with this legal coverage, posts may be taken down. 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 claim can be made under the fair use provision of US copyright law. See here about the process for making a request.
Reproduction for Private Purposes (the “format-shifting” exception)
The reproduction, for private purposes, of any work is permitted as long as the source copy was legally obtained and a digital access lock is not circumvented to make the copy. This allows you to copy a CD to your computer or transfer a file or iTunes purchase from one device to another. The source copy and the devices would need to be owned by you (or, in some cases, a member of your household) in order for it to be legal. This provision does not address copying onto a CD-R or other “recording medium” (such copying would be covered in some cases by the copying levy - such as on CD-Rs). The provision also does not allow you to give away the copy you make.
A backup copy of a work may be made to protect against the loss of the source copy or anything that may make the original unusable, if the source was a legally obtained copy and a digital access lock is not circumvented to make the copy. The backup copy cannot be given away. The source copy cannot be sold or given away without first destroying the backup.
Recording Signals and Recording Programs for Listening/Viewing at a Later Time (the “time-shifting exception”)
Until 2012, the Copyright Act did not address copies made by devices like PVRs - so such copies were ostensibly illegal. It is now legal to record radio and television programs for listening or viewing at a later time. So, you can go ahead and start using the PVR (or VCR if you are still into that) to record shows. The provision allows programs to be kept for a reasonable time to view (or listen to) at a more convenient time, but does not allow a collection of shows to be made and kept indefinitely.
Private Copying and File Sharing
A copy of a musical work may be made for private use onto an audio recording medium without infringing copyright. This has been confirmed to include hard drives and could include downloads. Despite rumours to the contrary, however, it is not legal in Canada to share (distribute or communicate by telecommunication) copyright-protected files with a large group over file sharing services such a BitTorrent.
Changes to the Copyright Act have added a number of new measures that include making it harder for sites based in Canada to provide links to torrents, requiring notices of infringment claims be forwarded to alleged illegal file sharers and making it easier for content owners to get information about internet users from internet service providers (ISPs). This information may potentially be used against the user in a legal action.
More information on file sharing and the issues involved is available from the Canadian Internet Policy and Public Interest Clinic (CIPPIC): http://www.cippic.ca/file-sharing