Copyright Modernization Act (Bill C-11) and the Supreme Court of Canada Decisions on Fair Dealing: How does this Affect Libraries?

Copyright Modernization Act (Bill C-11) and the Supreme Court of Canada Decisions on Fair Dealing: How does this Affect Libraries? For the Manitoba Libraries Pre-Conference May 12, 2014 By Dr. John Tooth Bibliotecka Consulting c John Tooth, 2014 1

Agenda 1. Interpretations of copyright 2. State of the Art for all types of Libraries 3. Copyright Modernization Act Bill C-11 3.1-3.9 Educational institutions clauses 3.10-3.13 Libraries, archives and museums clauses 4. Supreme Court of Canada Decisions and Fair Dealing 4.1 For Faculty, Teachers and Staff 4.2 For Students 5. Other copyright issues 6. Liability 7. For further information 8. Questions and answers c John Tooth, 2014 2

1.0 Interpretations of Copyright There are many, depending on the philosophical position, understanding, and employment status The interpretations of the meanings of Bill C-11 in this presentation are those held by the Education Coalition, including: Council of Ministers of Education, Canada [except Quebec] (CMEC) Canadian Teachers Federation (CTF) Canadian School Boards Association (CSBA) Association of Canadian Community Colleges (ACCC) Canadian Home and School Federation Association of Universities and Colleges of Canada (AUCC) This presentation conforms to the interpretations of the above educational organizations This presentation provides you with informed advice, not legal advice c John Tooth, 2014 3

2.0 State of the Art I will be examining these areas: Three similar but separate streams of litigation going on for K-12 schools, for universities and colleges, and for provincial/territorial governments York University lawsuit U of Toronto and Western University did not renew their AC licenses Access Copyright Further copyright sessions at upcoming conferences New copyright resources c John Tooth, 2014 4

2.1 K-12 Schools All schools in Canada (except Quebec) chose to operate outside of the Access Copyright tariff/license world as of January 1, 2013 AC lost 18 million in revenue annually AC has two K-12 Tariffs before the Copyright Board 2010-2012 (filed in 2009) and 2013-2015 (published in Canada Gazette, June 16, 2012) Both tariffs will be heard at the same time Price is now $4.81 per student which is down from $5.16 originally approved by the CB Council of Ministers of Education, Canada (CMEC) participated in the CB hearings on April 29, 2014, which concluded on May 9 Likely take the CB one year to approve the new tariff Since no Canadian schools have a tariff, the outcome of this litigation will not affect any schools AC requested and received from the CB an Interim K-12 Tariff 2010-2015 When the tariffs before the CB are approved, then the Interim Tariff is superseded AC can now sue a school board if it so chooses (it has not so chosen) Possibly cannot find the cash to undertake two lawsuits (York University) at the same time c John Tooth, 2014 5

2.2 Universities and Colleges AC has two post-secondary tariffs before the Copyright Board 2011-2013 2014-2017 AC requested that the CB hear both cases at the same time CB said no as the 2014-2017 tariff proposal has a new making available clause, the meaning of which is only known to AC Only the 2011-2013 proposed tariff is being heard Both Association of Canadian Community Colleges (ACCC) and the Association of Universities & Colleges of Canada (AUCC) withdrew from the proceedings leaving essentially AC without a litigant CB now asking AC some interesting questions on their positions related to: transactional licenses, insubstantial use, and fair dealing AC continue to argue in its response to the CB that there is no fair dealing No date set for the hearing, or even if there will be a hearing Price has gone from $45.00 for universities and $26.00 for colleges, to $26.00 for universities and $10.00 for colleges On February 14, 2014, AC submitted supplementary evidence to the CB A course pack in use at Langara College A notice distributed by Simon Fraser University to faculty regarding scanning and placing materials on a server to be viewed online by students AC also has an Interim Post-Secondary Educational Institutions Tariff, 2011-2013, which many Canadian colleges and universities have signed onto c John Tooth, 2014 6

2.3 Access Copyright s Litigation with York University Suit launched by AC on April 8, 2013 AC contends that York faculty continued to make copies of copyrighted material without signing an interim tariff and paying the appropriate fees York contends that the interim tariff was voluntary, that much of their copying was under fair dealing or license, and that AC has failed to show the transfer of rights from individual creators to AC therefore, AC has no repertoire Case judge is appointed who will manage the case and set timetable CMEC presented to the Federal Court on March 26 its rationale for leave to intervene in the case Judge dismissed the request as too early in the process; that the CMEC could apply again to intervene when the issues are understood York University presented a bifurcation motion to split the case into two parts: Part One would address the 5 professors and 87 works as identified by AC s initial litigation; Part Two would look at other issues Judge indicated more time was required to make the determination AC opposed both motions Federal Court decision likely in the Fall of 2015, followed by appeals c John Tooth, 2014 7

2.4 University of Toronto Negotiations between the U of T and AC to a license failed During the negotiations, AC requested a sample survey of their materials on Blackboard LMS, which was provided on the condition of confidentiality After AC received the U of T letter stating that there would be no license, AC sent the survey data to the CB on December 13, 2013 as evidence in the postsecondary tariff proceedings U of T sought an injunction to suppress the information (still uncertain if the CB has accepted the U of T survey data) The U of T data had no contextual information (fair dealing, under license, public domain) AUCC had attempted to draft a survey tool with AC but again AC wanted no contextual information Neither the U of T nor Western Ontario now have copyright licenses with AC c John Tooth, 2014 8

2.5 Provincial and Territorial Governments Tariffs Two Access Copyright tariffs before the Copyright Board: 2005-2009; and 2010-2014 Both tariffs dealt with together CB has heard the case with a decision still pending c John Tooth, 2014 9

2.6 Access Copyright With schools no longer taking up a tariff with AC, AC s revenue changed from 30 million to 12 million annually AC will not sue institutions that have a license or tariff AC will not sell transactional licenses to institutions that do not have a tariff or license AC continues to argue that there is no fair dealing, and that no copying can take place without a license or tariff Institutions do have two options with AC: opting in by taking up a tariff or license; or opting out and running on fair dealing, user rights in the Copyright Act, open access, and contracts U of W, Brandon U and University of the North opted out; U of M and RRC opted in c John Tooth, 2014 10

2.7 2014 ABC Copyright Conference at the University of Victoria, May 26-27 Sessions include: -Greg Younging, Copyright and Traditional Knowledge -Max King, Importance of negotiating fair dealing into e-resource licenses -Lisa Di Valentino, Interaction between electronic subscription agreements and users rights in copyright law -Devin Soper & Max King, Supporting MOOC development -John Tooth, Procedures to handle creator complaints via Notice and Notice -Meaghan Shannon & Jennifer Peters, Copyright Literacy in Ontario Colleges c John Tooth, 2014 11

2.8 Copyright Sessions at the 2014 Canadian Library Association Conference in Victoria, May 28-May 31 Rob Tiessen & Margaret Ann Wilkinson, To sign or not to sign: What makes the difference vis-à-vis Access Copyright Jeannie Bail & Victoria Owen, Copyright: The International Dimension Ann Ludbrook, Brent Roe, John Tooth, & Margaret Ann Wilkinson, Copyright Update: Voltage Pictures v John Doe, Notice and Notice, Crown Copyright, and Licensing and digital works c John Tooth, 2014 12

2.9 Major Copyright Conference in Manitoba in 2015 2015 ABC Copyright Conference will be held at the U of Winnipeg, May 4 and 5, 2015 Co-sponsored and co-chaired (Juliette Nadeau from the U of M Copyright Office, and myself from the U of Winnipeg Library, Copyright Office) Copyright love-in where we hear presentations (10-15) on copyright issues evolving in our libraries c John Tooth, 2014 13

2.10 New book Tooth, John. Canadian Copyright in Schools and School Libraries: A Primer will be published by CLA in late 2014 While specifically written for schools K-12, both teachers and school library staff, everything inside is applicable to all other non-profit educational institutions and libraries Set a bulk purchase price and as well as individual copy sales Informative, easy to read, and addresses typical questions asked Workshops addressing the book are also being considered c John Tooth, 2014 14

2.11 New Copyright Column in Feliciter Peer reviewed articles by members of the CLA Copyright Advisory Committee with Margaret Ann Wilkinson as general column editor Bail, Jeannie and Roe, Brent. Copyright and the Trans-Pacific Partnership. Feliciter 59(5) October 2013. Tiessen, Rob. The Definition of Commercially Available. Feliciter 59(6) December 2013. Tooth, John. Copyright for Schools and School Libraries. Feliciter 60(1) February 2014 Cheng, Sam and Winter, Christina. Copyright Skills in Academic Libraries. Feliciter 60(2) April 2014. Wilkinson, Margaret Ann. Copyright Users Rights in International Law. Feliciter 60(3) June 2014. TBA August Feliciter Owen, Victoria. Historical Background to Copyright and Public Domain (tentative title). Feliciter 60(5) October 2014. Soltau, Carolyn. Copyright and Special Libraries (tentative title). Feliciter 60(6) December 2014. c John Tooth, 2014 15

2.12 CLA Copyright Advisory Committee Very active committee looking out for your copyright interests Working with CLA executive council developing advice and proposed letters and policy regarding current copyright issues Writing and presenting at conferences, in Feliciter, et al. All are welcome at the Copyright Committee annual meeting at the CLA conference c John Tooth, 2014 16

3.0 Copyright Modernization Bill (C-11) Received Royal Assent on June 29, 2012 None of the amendments proposed by opposition parties, or organizations, or individuals, were accepted by the Conservative majority in the House of Commons, and in the Senate Gazetted Part III, August 30, 2012, Vol 35, No. 2 at http://www.gazette.gc.ca/rp-pr/p3/2012/g3-03502.pdf Proclamation into Force As of November 8, 2012 Except for a few clauses (e.g. ISPs section, and notice and notice regulations) C-11 proclaimed at http://laws-lois.justice.gc.ca/eng/annualstatutes/2012-20/fall-text.html Department of Justice has consolidated Bill C-11 into the Copyright Act C-42 at http://lawslois.justice.gc.ca/eng/acts/c-42/index.html Act scheduled to be reviewed in five years time (use it or lose it) Other regulations are likely forthcoming c John Tooth, 2014 17

3.0 Educational Institutions An educational institution is defined in the Copyright Act as not for profit, with curricula, with teachers and students Schools K-12, universities and colleges meet this definition Educational institutions which are for profit are not considered as having the rights to be discussed here Public libraries per the Copyright Act are not considered educational institutions, even though they have a strong educational mandate c John Tooth, 2014 18

3.0 Nature of the New User Rights Government divided the new clauses into two groups: for Libraries, Archives and Museums (LAMs) and for Education Institutions (EIs) If you are in a public library, your are a LAM but not an EI If you are in a for-profit, commercial institutions (some universities, colleges, schools, law firms, etc.), you are neither a LAM nor an EI Other clauses were directed at individuals or persons c John Tooth, 2014 19

3.1 Educational Use of the Internet For Education Institutions CMEC indicated to government that teachers wanted clarity that, using the Internet in schools in multiple ways, was legal That it was not an infringement for students and teachers to participate in routine classroom activities where they download, save and share Internet text and images that were intended to be freely downloaded and distributed The government indicated that if the CMEC were to prepare such a clause, it would be given consideration CMEC wrote the Educational Use of the Internet proposal in legislative language, and, with the exception of a change in a few words, the Educational Use of the Internet appeared in Bills C-11/32 c John Tooth, 2014 20

3.1 Educational Use of the Internet Bill C-11 provides a new users right for educational institutions, teachers, faculty and students to the educational use of publicly available Internet material Publicly available means text, images, music recordings, a/v works, theatrical performances, instructional demonstrations, etc. This permits the incorporation of text, images, etc. into teaching and learning; exchanging materials with teachers, students and peers; and reposting a work on a restricted access course website, or password protected Library e-reserve If posted to a personal website or to a departmental website without restricted-access, these provisions do not apply At this time, Netflix will not sell subscriptions to educational institutions, nor can you show Netflix movies (household use only) in the classroom Similarly, ITunes music and video cannot be used in the classroom The use of YouTube videos in the classroom has been approved by legal counsel: you can download, save and communicate a YouTube video and place on LMS, school website with restricted access; if the video cannot be downloaded, you can stream or have students individually go to the site c John Tooth, 2014 21

3.1 Educational Use of the Internet To encourage copyright awareness and respect in all circumstances, students and faculty would be required to cite the source of the Internet materials they use Key is that the Educational Use of the Internet applies strictly to publicly available materials on the Internet; these materials have no technological protection measures such as passwords, encryption, or a clearly visible notice prohibiting education use Databases being sold to your institution are unaffected Contract law normally trumps copyright law c John Tooth, 2014 22

3.1 Educational Use of the Internet Access Copyright argued that there was no need for this exception because, with a license/tariff, it would be included (and paid for) During the presentations by creator groups at the Special Legislature Committee hearings for Bill C-11, Access Copyright argued that this clause would cost the creative community millions of dollars in lost revenue, but did not provide supporting evidence Liberals in an earlier document argued that a new collective should be set up to administer the use of the Internet c John Tooth, 2014 23

3.2 Reproduction for Instruction/tests and examinations Pre Bill C-11 copyright law stated that specific technologies can be used to make copies for instruction, including less used technologies such as dry-erase boards, flip charts, surfaces for displaying hand-written material, and overhead projectors Called the Blackboard exemption in the digital age These examples were removed in Bill C-11, making the clause technologically neutral Similar clause that applies to tests and examinations When using the new C-11 clause, the work must not be commercially available In other words, if you can purchase a copy, then you cannot use these exceptions c John Tooth, 2014 24

3.3 Performances of AudioVisual Materials Existing exception permitted the performance of musical works in the classroom for educational purposes without public performance rights The new exception extends to apply to audiovisual materials (29.5) With Bill C-11, the new exception applies if the copy being performed is a noninfringing copy or the person responsible for the performance has no reasonable grounds to believe it is an infringing copy This means that public performance rights are eliminated when the A/V works are used in educational institutions If the purpose of the use is other than education, then an entertainment license is required c John Tooth, 2014 25

3.3 Performances of AudioVisual Materials This means that no licenses with Audio Ciné Films and/or Criterion Films/VEC are required when showing A/V works in classrooms for educational purposes This means that you can acquire a legal copy by: Borrow from your institution s Library Purchase a DVD at Wal-Mart, Amazon, etc. Rent from movie stores Borrow from your public library Borrow from a friend/colleague and show in the classroom c John Tooth, 2014 26

3.3 New Trends in a Non PPR Educational World Video streaming CBC and NFB are trying to keep the prices of their educational products up by including value added materials, such as teacher s guides, cataloguing, etc CBC and NFB have indicated that any of their digital files on their networks can be used in an educational setting provided that educators use links or play directly in the classroom off the sites; no downloading whatsoever; DVDs available for purchase Noticed companies replacing PPR with institutional price Where a media distributor tries to sell at unreasonable rates, try Amazon (agreement is with Amazon and not the media distributor) c John Tooth, 2014 27

3.4 News and News Commentary Programs An exception, first enacted in 1999, permits a person acting under the authority of an non-profit educational institution to make a single copy of a news program or a news commentary program and to perform the copy on the institution s premises for educational and training purposes The existing exception permits the copy to be made and shown an unlimited number of times without the permission of the copyright owner or the payment of royalties for up to one year from the date the copy is made After one year, the copy must either be erased or paid for Bill C-11 eliminates the need to pay copyright royalties/seek permissions for news and news commentary programs for the life of the copy The record-keeping obligations are also eliminated For all other programming at TV, radio or the Internet, copy for 30 day evaluation and then destroy or purchase through the ERCC (pay $1.63/minute) New Cosmos series DVDs seemingly being sold by Amazon, but you could use ERCC c John Tooth, 2014 28

3.5 Online Learning New exception (section 30.01) permitting educational institutions to record and transmit lessons that include copyright materials over the Internet The exception is intended to put students who are receiving instruction online in a similar position as students receiving instruction in a face-to-face teaching situation The student is permitted to make a copy of the lesson on a portable device and keep the copy until 30 days after the final evaluation is received (only if this material required copyright authorization/permission) Facilitates technology enhanced learning and distance education Many organizations and associations proposed with Bill C-11 to delete a requirement to destroy the copy of the lessons within 30 days after the students who are enrolled in the course receive their evaluation (staff are also required to destroy their digital copies if the material required copyright authorization/permission) These proposals were rejected by the government c John Tooth, 2014 29

3.6 Technological Protection Measures (TPMs) or Digital Locks (clause 41.1) Educational institutions (faculty and students) are prohibited from circumventing TPMs (e.g., passwords, time-limited trial systems) that protect copyright material In Bill C-11, prohibition against circumventing TPMs is subject to limitations and exceptions that include reverse engineering, security testing, and encryption research Persons with perceptual disabilities can circumvent TPMs in order to access and use copyright material (e.g., making a braille version of a work protected by a TPM), provided that the TPM is replaced This means that users, other than those with perceptual disabilities, cannot exercise their fair dealing rights for materials with digital locks Aside from the difficulty of breaking a lock, it is impossible to restore Many organizations and associations recommended the removal of these clauses, replaced with a regime permitting circumvention for the purpose of non-infringing copying (not agreed to by the government) c John Tooth, 2014 30

3.7 Print and Perceptually Disabled Exception (clause 32) There are three amendments in Bill C-11 regarding persons who are the print and perceptually disabled. 1) The existing exception names the beneficiaries of the exception as persons and non-profit organizations acting at the request of a perceptually disabled person Bill C-11 adds a person with a perceptual disability to the named as a beneficiary 2) A new exception permitting non-profit organizations acting for persons with a print (as opposed to perceptual) disability to send special-format materials to another country Royalties must be paid to the copyright owner in an amount to be fixed in regulations Records must also be kept 3) Permitted persons with a perceptual disability, and those acting on their behalf, to circumvent an access-control technological protection measure (TPM) Recently, WIPO passed a treaty for materials for the persons with disabilities which is far broader than Canada s clause 32 hopefully when the five years are up for Bill C-11 that Canada will revise the 32 exception based on the WIPO treaty c John Tooth, 2014 31

3.8 User-Generated Content For individuals (not corporate individuals): (clause 29.21) This clause permits students and perhaps faculty to use copyrighted works for noncommercial purposes without permission to create new works or User-Generated content UGC is also called the YouTube exception, or the Mashups/Remixes exception UGC can be disseminated over the Internet Conditions: The original material must have been legally acquired New work must not become a substitute for the original material (e.g. no interference in the market of the original work) All sources must be cited Must be used for non-profit purposes c John Tooth, 2014 32

3.9 Backup Copies (clause 29.24) Not an infringement of copyright in a work or other subject matter for a person who owns or has a license to use a copy of a work to reproduce the source copy if: -solely for backup purposes in case of the source copy being lost, damaged or rendered unusable -the source copy is not an infringing copy -do not circumvent technological protection measures -cannot give the reproduced copy away c John Tooth, 2014 33

3.10 Preservation Copying (section 30.1)/Performance (29.5) For Libraries, archives and museums A preservation copy (30.1) can be made if the technology needed to use the original work is in danger of becoming unavailable A preservation copy can be made if the format is obsolete or becoming obsolete In a library setting, in order to use the preservation copy in the classroom, section 29.5 permits you to perform the resulting DVD If you are converting a VHS collection to DVD, this combination of clauses will assist: however, if the program is commercially available in DVD, you must go in that direction c John Tooth, 2014 34

3.11 Digital Inter-library Loans Libraries can use digital technology to deliver an inter-library loan copy of a copyright work Using the Copyright Act clause 30.4, you must destroy the original e-ill in 5 business days after it is received by the requesting individual; cannot disseminate electronically the ILL to anyone else; and can make only one physical copy OR, Use fair dealing instead One is able to do with an ILL the same as one could do with a periodical article or book chapter found in a work in the collection/your personal collection, based on fair dealing c John Tooth, 2014 35

3.12 Statement on e-reserves or AUCC recommends: interlibrary loan This copy was made pursuant to the Fair Dealing Policy of the (institution) of which may be found at http://xxxxxxxxxxxxxxx may only be used for the purpose of research, private study, criticism, review, news reporting, education, satire or parody, and full attribution must be provided. The use of this copy for any other purpose may require the permission of the copyright owner. -fair dealing could also be applied to an interlibrary loan request from a local public library, school library or other non-profit library c John Tooth, 2014 36

3.13 Internet Service Provider (ISP) Liability (not yet proclaimed) Bill C-11 contains provisions (section 41) to address the liability of ISPs for what happens on their networks and the role ISPs should play in curbing copyrightinfringing activities on their networks Bill C-11 provides that ISPs will not be liable for infringements of subscribers who post infringing material on the Internet Bill C-11 clarified that an ISP that facilitates or enables connectivity will not be liable for the infringing acts of their subscribers Bill C-11 required ISPs to discourage infringing uses of their facilities by participating in a notice-and-notice regulatory regime ISPs are required to forward any notice they receive from a copyright owner to a subscriber who is alleged to be engaged in infringing activities online The UWinnipeg is developing guidelines for the handling of copyright claims c John Tooth, 2014 37

3.14 Notice and Notice Regulations (Not yet proclaimed) CLA has identified a number of concerns with the pending notice and notice provisions: -30 days for ISPs and hosts to forward notice to the subscriber -prescribe the form for each type of notice to ensure all data elements are included -fee of $50.00 for the transaction of notices to accompany the claim notice -that the notice and notice system only be available to rightsholders and their exclusive licensees and assignees Creative community wanted notice and takedown What is an ISP? Search engines for sure, but what about libraries and educational institutions? c John Tooth, 2014 38

4.0 Fair Dealing 2004 Prior to Bill C-11, it was not an infringement of copyright to deal fairly with a work for the purpose of research, private study, criticism, review or news reporting In the Supreme Court of Canada 2004 CCH case, librarians making copies for lawyers engaged in the practice of law was fair; and that a broad and liberal interpretation of fair dealing be used; and identified two tests for determining fair dealing: Test 1: The purpose (e.g. research, or private study) must be on the list of allowable purposes) Test 2: Dealing must be fair c John Tooth, 2014 39

4.0 Fair Dealing 2004 Test 2: Is it fair? 1. Purpose: from amongst the eight purposes of fair dealing 2. Character: number and distribution of the copies 3. Amount: portion of the work copied 4. Alternatives: is what you are doing reasonable, is providing a link to the source more fair 5. Nature: importance of the dissemination of the work 6. Effect on the work: what is the impact on the market c John Tooth, 2014 40

4.0 Fair Dealing and the Supreme Court of Canada 2012 Supreme Court ruled on July 12, 2012 that the copying by teachers for students was fair dealing (Alberta Education v. Access Copyright) That there was no difference between a student making a copy (formerly was fair dealing) and a faculty member making a copy (formerly was not fair dealing, but rather instruction, or study) Both activities by students and by faculty members are research and private study The court stated that it was impossible for schools to purchase sets of books rather than making copies (as argued by Access Copyright) Court also ruled that materials should be viewed with technological neutrality (e.g.. there are no textbooks, recommended materials, supplementary materials just materials) The court ruled that copying short excerpts was fair dealing (see http://scc.lexum.org/en/2012scc37/2012scc37.html) There are no definitions of short excerpts in the Canadian Copyright Act or in Canadian case law Internationally, Australian Copyright law defines short excerpts as fair dealing, including a chapter of a book, or 10%, etc. c John Tooth, 2014 41

4.0 Fair Dealing and Bill C-11 Prior to Bill C-11, there were five fair dealing purposes: research, private study, criticism, review or news reporting Bill C-11 expanded the purposes of fair dealing to include: education, satire and parody c John Tooth, 2014 42

4.1 Fair Dealing Guidelines for Faculty, Teachers and Staff Lawyers for AUCC, ACCC and CMEC worked collaboratively to develop the Fair Dealing Guidelines Many universities, colleges and all schools (except Quebec) are following these guidelines Except for some small wording changes in comparing the documents, the policies are identical Lawyers believe that following these guidelines (10% rule) one can easily defend oneself in court CAUT s 20%? c John Tooth, 2014 43

4.1 You Can Do: Guidelines 1) Faculty, teachers, staff members in non-profit educational institutions may communicate and reproduce, in paper or electronic form, short excerpts from copyright-protected work for the purposes of research, private study, criticism, review, news reporting, education, satire and parody. 2) Bibliographic information must be provided when copying or communicating short excerpts from a copyright-protected work under this Fair Dealing Policy for all of the purposes cited in #1.] c John Tooth, 2014 44

4.1 You Can Do: 3) A copy of a short excerpt from a copyright-protected work may be provided or communicated to each student enrolled in a class or course: As a class handout As a posting to secure course or learning management system that is password protected or otherwise restricted to students of the educational institution As part of a course pack c John Tooth, 2014 45

4.1 What you can do 4) A short excerpt means: Up to 10% of a copyright-protected work (including literary work, musical score, sound recording and an audiovisual work) One chapter from a book A single article from a periodical (issue) An entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart, and plan) from a copyright-protected work containing other artistic works An entire newspaper article or page An entire single poem or musical score from a copyright-protected work containing other poems or musical scores An entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work provided that in each case, no more of the work is copied than is required in order to achieve the allowable purpose. c John Tooth, 2014 46

4.1 You Cannot Do: 5) Copying or communicating multiple short excerpts from the same copyright-protected work with the intention of copying or communicating substantially the entire work, is prohibited. c John Tooth, 2014 47

4.1 You must do 6) Copying or communicating that exceeds the limits of this Fair Dealing Policy should be referred to a supervisor or other person designated by the educational institution for evaluation. An evaluation of whether the proposed copying or communication is permitted under fair dealing will be made based on all relevant circumstances. 7) Any fee charged by the educational institution for communicating or copying a short excerpt from a copyright-protected work must be intended to cover only the costs of the institution, including overhead costs. c John Tooth, 2014 48

4.2 Students and Fair Dealing: Approach 1 While fair dealing applies to everyone, the Fair Dealing Policy will not be applied to students We don t control them; therefore we are not responsible for their copyright infringements These institutions might have a poster with fair dealing information on it, and students have to deduce/infer that this information applies to them I sense that many universities and many colleges are going with this model as a means of risk management AUCC seems to be heading in this direction CMEC has no position on the application of the Fair Dealing Policy on students c John Tooth, 2014 49

4.2 Students and Fair Dealing: Approach 2 In this approach students and the Fair Dealing Policy are associated with one another Thinking is: What faculty can do for students, students can do for themselves Nevertheless, an educational institution is not legally responsible for what students do in copyright c John Tooth, 2014 50

4.3 ACCC Student Copyright Policy Student Poster COPYRIGHT DOES MATTER STUDENT GUIDELINES FOR POSTING, SCANNING OR COPYING The copyright law of Canada governs the copying and communicating of copyrightprotected material. Certain copies and communications may infringe copyright law. These fair dealing guidelines are provided for your information. You are solely responsible for knowing your rights and responsibilities under the Copyright Act. [insert name of institution] is not responsible for infringing copies made by the users of these machines. c John Tooth, 2014 51

4.3 ACCC Student Poster The fair dealing provision in the Copyright Act permits the copying and communication of short excerpts from a copyright-protected work, without permission or the payment of copyright royalties. 1. A student may copy and communicate, in paper or electronic form, a single copy of a short excerpt from a copyright-protected work for the purpose of research, private study, criticism, review, news reporting, education, satire or parody. 2. Copying for the purpose of news reporting, criticism or review must mention the source and, if given in the source, the name of the author or creator of the work. 3. A single copy of a short excerpt from a copyright-protected work may be posted to a learning or course management system that is password protected or otherwise restricted to students of a particular course. c John Tooth, 2014 52

4.4 ACCC Student Poster 4. A short excerpt means any one of a to g: a. up to 10% of a copyright-protected work (including a literary work, musical score, sound recording, and an audiovisual work) b. one chapter from a book c. a single article from a periodical d. an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart, and plan) from a copyright-protected work containing other artistic works e. an entire newspaper article or page f. an entire single poem or musical score from a copyright-protected work containing other poems or musical scores g. an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work 5. Copying or communicating multiple short excerpts from the same copyrightprotected work, with the intention of copying or communicating substantially the entire work, is prohibited. c John Tooth, 2014 53

5.0 Other Copyright Issues These issues have come up during my 60 or so copyright presentations over the past two years at the U of Winnipeg, on the CLA Copyright Advisory Committee, and the ABC Copyright List, and phone calls from the community c John Tooth, 2014 54

5.1 Citations A full citation, including page number(s), is required on all articles, book chapters, and with slides on PowerPoint presentations With PP slides, the citation can be at the bottom of each slide when using the copyrighted materials of others, or at the front of the presentation For slides which are your creation and you work for a university or college, then identify yourself as the creator (James Mason. 2013. University of Winnipeg) For a school employee, works created during work time belong to your school division/district; works created when not at school, are your creations and therefore I would cite c John Tooth, 2014 55

5.2 Personal Private Faculty/Teacher Websites Personal private faculty websites are not an extension of your institution nor does your institution authorize such sites for copyrighted content and students The educational institutions user rights benefits in the Copyright Act and the AUCC or ACCC or CMEC Fair Dealing Guidelines adopted by your institutions do not apply to content on personal private faculty/teacher websites, nor to Cloud, Facebook, Dropbox, Mendeley, or Zotero You can create personal private websites for student content but you must ensure that the only material on the site is that of the faculty member who holds the copyright to his/her material, has the written permission of the author of the content, the content is in the public domain, and is an Internet link to other websites, provided that is not to e-resources in your Library or LMS c John Tooth, 2014 56

5.3 Further Use of Student Copyrighted Works Unless stated to the contrary, all student created materials written/produced during a class are for the explicit purposes of learning and receiving a grade Further use of the material requires the permission of the student (photographs of a field trip, a re-enactment, posting of posters, placing student essays on a departmental website) The University of Winnipeg Library Copyright website has a student permission form which can be used for the purposes of copyright release for specific purposes (the permission should be sought at the beginning of the event/activity rather than seeking it at the end of the event/activity) c John Tooth, 2014 57

5.4 Images Using the Copyright Act s Educational use of the Internet user right and fair dealing (10%), most images from the Internet and from print publications can be used in the classroom Images that are your intellectual property should also have your credit Must credit the creator, provide title of the item, and the source of the information when using other copyright holders content On the University of Winnipeg Library Copyright website, there is a how to credit images c John Tooth, 2014 58

6.0 Liability With an Access Copyright tariff or license, you have virtually no liability; without a tariff or license, you are responsible and liable for your actions Some 51 colleges; 22 universities; and all Canadian schools (except Quebec) have opted out of Access Copyright Liability is reduced through: respecting the rights of creators, copyright workshops, posters, questions and answers, consultations, copyright websites, reviews (audits) c John Tooth, 2014 59

7.0 Bibliography Dryden, Jean. (2014). Demystifying Copyright: A researcher s guide to copyright in Canadian libraries and archives. Ottawa: Canadian Library Association. (new edition is expected in the fall of 2014) Harris, Lesley Ellen. (2013). Canadian Copyright Law. 4th edition. Toronto: Wiley. ISBN 978-1-1180-7851-8 Geist, Michael. Ed. (2013). The Copyright Pentalogy: How the Supreme Court of Canada shook the foundations of Canadian copyright law. Ottawa: University of Ottawa Press. ISBN 9780776608013 Murray, Laura J. & Trosow, Sam E. (2013). Canadian Copyright: A citizen s guide. Toronto: Between the Lines. ISBN 9781771130134 Noel, Wanda, & Snel, Jordan. (2012). Copyright Matters! Key questions & answers for teachers. (2012). Toronto: Council of Ministers of Education, Canada. Freely available at http://www.cmec.ca/publications/lists/publications/attachments/291/copyright_ Matters.pdf Tooth, John. (2014). Canadian Copyright in Schools and School Libraries: A primer. Ottawa: Canadian Library Association. (expected in late 2014) c John Tooth, 2014 60

8.0 For Further Information 1. The University of Winnipeg s Copyright Office s website at http://copyright.uwinnipeg.ca provides additional copyright information 2. Contact John Tooth (email je.tooth@uwinnipeg.ca), the University s Copyright Officer, at 204-786-9940 or the Copyright Office at copyrightoffice@uwinnipeg.ca c John Tooth, 2014 61

9.0 Copyright Questions and Answers c John Tooth, 2014 62