P7 – Fair Dealing (Copyright) Procedures

Part 1: Introductory

1.0 Purpose

1.1

The College has developed these Procedures to help ensure that instructors, staff and students understand how to apply the fair dealing tests outlined in Policy P7. These Procedures provide reasonable safeguards for the owners of copyrighted works and to offer guidance on what is likely to be considered fair dealing in most contexts.

1.2

The College reasonably believes that these Procedures provide reasonable safeguards for the owners of copyright-protected works in accordance with the Copyright Act and the Supreme Court of Canada decisions.

1.3

The College’s Fair Dealing Tool has been developed based on these Procedures and may be used to assist instructors and staff in decision-making concerning the use of a particular work. Students must assess copyright content based on the “tests” as outlined by the Procedures. Situations of doubt must always be referred to the Copyright Officer for expert advice.

2.0 Application

2.1

All instructors, staff and students shall adhere to these Procedures.

3.0 Definitions

3.1

Fair Dealing is a statutory exemption in Canadian copyright law, which allows for the reproduction and use of copyright-protected works for certain purposes without requiring permission, provided that use/dealing is “fair”. An explanation of fair dealing and its application at the College is detailed in the P7 Policy and Procedures.

Part 2: Procedures

4.0 Applying the “Tests” for Fair Dealing

4.1

The following tests for assessing fair dealing must be applied in order to determine whether a copyright-protected work may be used without license or permission:

a) Test 1: Is the use for an allowable purpose?

College instructors, staff, and students may communicate and reproduce, in paper or electronic form, short excerpts from a copyright-protected work for the purposes of research, private study, criticism, review, news reporting, education, satire and parody.

Instructors and staff using copyright protected works under allowable purposes indicated above should also consider whether the use is supported by the College’s educational purposes. The College’s Fair Dealing Tool can be used to assist instructors and staff in making this evaluation. In the event that a staff member or instructor’s intended use is not clearly connected to the College’s educational purposes, but is for the purposes of news, reporting, satire or parody, the instructor or staff member must consult with the Copyright Officer.

Students may reproduce, in paper or electronic form, short excerpts from a copyright-protected work for the purposes of research, private study, criticism, review, news reporting, education, satire and parody. Student questions related to the use of copyrighted works should be directed to the Copyright Officer.

b) Test 2: Is the intended use “fair”?

The following six factors are assessed in determining whether the use of a particular work being used for an allowable purpose (established at test 1) is considered “fair”:

1. The purpose of the dealing – the user must assess the purpose and motive of using the work, including whether it will be used for commercial, educational or charitable purposes. Copying done for educational or charitable purposes will be viewed as more fair, while use for commercial purposes is less likely to be considered fair.
2. The character of the dealing – the user must consider how the work will be dealt with, in terms of: the number of copies they will make, how broadly the work will be distributed, and whether the copies will be destroyed after use. The more limited the use, the more likely that the use will be considered fair. For example, if multiple copies of a copyright-protected work are widely distributed, this may tend to be unfair. In contrast, a single copy of a copyright-protected work that is distributed to a specific audience for a particular allowable purpose is more likely to be considered fair. Limited use distribution, and retention of a copyright-protected works will generally be considered more fair.
3. The amount of the dealing – the user must assess the amount of the original they will use in both quantitative and qualitative terms. The quantitative analysis refers to the proportion of the work the user copies in relation to the whole of the original work. The qualitative analysis considers the relative importance of the copied portion. Generally, copying a short excerpt (a term that is further described below) of a work will be considered fair. In all cases, no more of the work should be copy than is required to achieve an allowable purpose.
4. Alternatives to the dealing – the user must consider whether there is an equivalent non-protected work or non-infringing way to access the work that could be used instead. Uses that do not infringe, such as referring students to publicly available links to a work or using open-source materials, are preferred and should be used whenever they are available.
5. The nature of the work – the user must consider whether the work is published and/or generally publicly available, or whether is the work is confidential/ unpublished. The copying of published works will tend to be more fair than copying of private works.
6. The effect of the dealing on the work – the user must consider the effect their use will have on the original work. If the dissemination of the copied work would be likely to compete with the sales of the original work or impact the value of the original work to the copyright owner, this suggests that copying may not be fair.

4.2

Having regard to the “amount of the dealing” factor included in test 2, a “short excerpt” will generally mean no more than:

1. up to 10% of a copyright-protected work (including a literary work, musical score, sound recording, and an audiovisual work); or
2. one chapter from a book;
3. a single article from a periodical;
4. an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart, and plan) from a copyright-protected work containing other artistic works;
5. an entire newspaper article or page;
6. an entire single poem or musical score from a copyright-protected work containing other poems or musical scores; or
7. an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work;

depending upon the type of work that the user is copying.

4.3

If the use will be greater than the examples outlined above, or if there is any uncertainty or doubt, the user must consult with the Copyright Officer prior to using the work.

4.4

If there is a non-copyright protected equivalent to the work, available, the alternative equivalent must be used in place of the copyright-protected work.

4.5

Where a copyright protected work is copied, in all cases, no more of the work should be copied than is required to achieve an allowable purpose (usually education).

4.6

For instructors and staff if the use is clearly limited to a short excerpt from a copyright-protected work, the copy may be provided or communicated to each student enrolled in a class or course:

1. as a class handout;
2. as a posting to a learning or course management system that is password protected or otherwise restricted to students of a school or post-secondary educational institution; or
3. as part of a course pack.

5.0 Additional Requirements

5.1

Attribution is a requirement of using copyright-protected works. Failing to properly attribute a work amounts to a copyright violation even if the use is otherwise fair. When copying or communicating short excerpts from a copyright-protected work under Policy P7, the work must cite the source, and, if given in the source, the name(s) of the author(s) or creator(s) of the work.

5.2

Where possible, short excerpts distributed under Policy P7 should stipulate that materials are for the purposes of the course only, and that the user is not to further disseminate the materials.

5.3

Instructors, staff, and students must not copy or otherwise disseminate unpublished or confidential works without the express permission of the copyright holder.

5.4

Instructors, staff and students, must not copy or otherwise disseminate copyrighted works for commercial purposes without the appropriate license or permission from the copyright holder.

5.5

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.

5.6

Copying or communicating multiple short excerpts from the same copyright-protected work by the College as a whole, with the intention of copying or communicating a substantial portion or the entire work, is prohibited under Policy P7 as this is generally not considered fair dealing. For example, if instructors in a program are using the same text as reference and each instructor copies a different 10% of a work, this use would not amount to fair dealing. For this reason, instructors, staff, and students are encouraged to make use of the Library’s Course Reserves, or Digitization Service so that the amount of the College’s use of a work can be determined.

For instructors, where an instructor becomes aware that another instructor or multiple instructors are copying short excerpts from the same copyright-protected work, the Copyright Officer must be notified so that the College’s overall use of the work may be evaluated, and, if necessary, appropriate permissions for the use of the work may be obtained.

5.7

Any copying or communicating that exceeds the limits in Policy P7 must be referred to the Copyright Officer for evaluation. An evaluation of whether the proposed copying or communication is permitted under fair dealing will be made based on all relevant circumstances.

5.8

Copying substantial portions of a copyright-protected work and copying falling outside the fair dealing exception requires other sources of permission (such as a license or permission from a copyright holder). Where such use is required, contact the Copyright Officer to discuss the options for obtaining the necessary permissions. Where an instructor or staff member has received permission to make use of a copyrighted work from the copyright owner, a record of this permission must be kept by the user and documented with the Copyright Officer. It is the responsibility to the instructor or staff member to report any such permissions.

Where a student has received permission to make use of a copyrighted work from the copyright owner, the student is responsible to maintain their own record of permission for the use of the work, unless a derivative work using the third party content is created where the College claims joint or sole Copyright ownership to material developed by students if compensation is provided to the students from the College, or the creation of the Work required extensive College Support permission must be documented with the Copyright Officer.

5.9

Questions related to the use of copyrighted works should be directed to the Copyright Officer.