Do I need to get permission? Go through the points below to help determine if it is needed.
1. Is the work protected by copyright?
Determine if the work is sufficiently original to have copyright.
Copyright protects only original work. A work must originate from its author, be more than just a copy and involve skill and judgment in its creation, not just a trivial or mechanical effort. Effort, or "sweat of the brow," such as may be involved in the compilation of a database, does not provide sufficient grounds for copyright. For example, a phonebook cannot be copyrighted as it a mechanical compilation of data. A precise photograph of a painting would not necessarily have its own copyright if the process of creating an accurate photographic copy is an mechanical one. A photo of a sculpture, on the other hand, would have copyright given the skill and judgment involved in choosing from which angle and in what light it should be photographed.
Determine if the work is in the public domain.
The term of copyright is time limited. Once a work enters the public domain, it no longer requires permission and belongs to the public. It may be copied, used and adapted in any manner. In Canada, the term of copyright usually lasts 50 years after the death of the creator. There are exceptions and special cases. Use the Canadian Public Domain Flowchart to determine if it is in the public domain. See the public domain section in Copyright Basics for a fuller description and an explanation of exceptions.
Substantial vs. Insubstantial
Determine if the portion of the work you wish to use represents an insubstantial part of the work.
Copyright covers the copying of a work or a substantial part of a work. An insubstantial part of a work may always be used without infringing copyright. The Copyright Act does not define what proportion of a work is insubstantial, but keep in mind that the judgment of whether an amount qualifies as insubstantial is one of quality as well as quantity. Common examples of an insubstantial use of a work include quoting sentences or paragraphs from a book, article, poem or a song and displaying short clips from a film or television show. Using a small portion from a work that sums up the entire point of the work, however, may be considered substantial and would not qualify. In such a case, you would then need to determine whether using the portion qualifies under fair dealing or, failing that, get permission.
2. Does the work already have a licence?
There are a significant number of works that are available for use without additional permission. Examples of already licensed works:
- Library electronic resources (journal databases, eBooks and streaming videos) are licensed by the Library and can be accessed, streamed or provided to students through persistent links. Many databases allow posting a copy to Blackboard or eReserves. Submit citations to the Copyright and Licensing office for a quick assessment of the licence terms.
- Works with Creative Commons licences grant users some right to use a work without needing to ask permisson. Most Creative Commons licences will allow educational use.
- Scholarly works available through open access journals or open access repositories.
- Government of Canada works may now be used without permission if the use is non-commercial.
- Statutes, regulations and court decisions of the federal government, provinces and territiories may be copied and communicated without permission, with the exception of Manitoba, Quebec and Nunavut.
- US government and government agency works are in the public domain and may be used.
- Many works grant permission for educational or nonprofit use - check copyright notices or user terms.
- Linking to content. Linking to freely available content or licensed Library resources does not involve copyright - however, please take reasonable steps to ensure that you are not linking to works that have been posted illegally.
3. Can I use the work under fair dealing?
Canadian copyright law allows the copying or communication (digital distribution) of a substantial portion of a copyrighted work, or in some cases an entire work, without the permission of the copyright owner under the fair dealing provision of the Copyright Act. Additional information on fair dealing and its application is available on the Copyright Basics page.
The MacEwan University Fair Dealing Guidelines ("Guidelines") cover the making and distribution of copies of copyrighted works by faculty and staff for students under fair dealing. The Guidelines represent a safe harbour interpretation of fair dealing in the educational context. In some cases, using a selection that exceeds the Guidelines may still qualify as fair dealing. Consult with the Copyright Specialist to help with this determination. Fair dealing assessments and approvals will be made based on all relevant information.
4. Does use of the work qualify for an exception?
Use of Works in the Classroom or in Lessons for Online Students
The Copyright Act provides exceptions to copyright for particualar users and uses, such as for educational institutions. An exception would be used only if it provides additional options to use a work when the use does not qualify for fair dealing. The restrictions and conditions in an exception apply only if you use a work under the exception. A more complete description of the exceptions is available in the Copyright Basics section.
The following exceptions are restricted to the premises of educational institutions and must be for an educational purpose without a motive of gain, except for the recovery of costs, including overhead costs. The source of works used should be a legal one.
The education exceptions in the Act allow:
- The copying of copyrighted content for the purpose of display in the classroom. 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 - no public performance rights 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 recording of broadcasts to be performed in the classroom at a later time. Due to a change in the law in January 2014, these recordings may be kept indefinitely and performed without the need to keep records or pay a royalty.
A new provision in the Copyright Act applies the above exceptions to online lessons. Some conditions apply. Contact the Copyright and Licensing Office for more information.
Online Video and Audio Streams
MacEwan Library eReserves provides a video and audio streaming program under the terms of a copyright exception. All or part of a video or audio work may be streamed to your course. Submit requests to eReserves.
Use of Works 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 students, 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 to 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 (a "digital lock") that restricts access or is behind a paywall may not be used under the exception.
- A website or individual work that has a clearly visible notice that specifically disallows educational use may not be used under the exception.
- A website that requires 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 publicly accessible 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: You will not be able to use Library database content under the Internet exception. Library databases will often give automatic access to content during a Google Scholar search. This will often have a "GetItMacEwan" option or the MacEwan logo will appear on the item page. The access to and use of this content is governed by the contract terms for the database. Some contracts allow, for example, posting content to Blackboard, others will only allow linking. Send a citation to the Copyright Office for a quick assessment of what the contract allows or, as a simpler solution, provide your students with a persistent link instead.
Does it qualify under the Non-commercial User-generated Content exception?
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 distributed 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 does not require the use be only for an educational purpose. This exception allows for uses of copyrighted works in a new context. The exception is commonly described as the "mashup" or "YouTube" exception, as it will allow the incorporation of copyrighted audio and video works in a home video and allow the video to be posted on a publicly accessible website without infringing copyright. The provision is not specific to audio and video, however, and is sufficiently open ended to apply in any context where works are used by an individual in a new work for non-commercial purposes. It would also apply to the use of works in student assignments - allowing the new work to be posted to sites (such as Facebook) that are open to the public.