Using Copyright Protected Works

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Copyright protection exists automatically for every work that is created, whether or not it is explicitly stated on the work, and even if there is no copyright symbol attached to the work. A work does not have to be formally published in order to be protected by copyright.  

Copyright applies to all formats, whether print or electronic, and extends to content on the Internet, including web sites, images, and social media posts.

Making copies of copyrighted works and communicating them to others (for instance, sending by email, posting in CourseLink or on a web site, or including in a presentation or article), is governed by the Canadian Copyright Act.  In order to copy all or a substantial part of a work, the permission of the copyright owner is usually required.  However, some copying is permitted under exceptions in the Copyright Act or may also be allowable under the terms of a work’s license.

Works that can be copied without permission

Not all works, or portions of works, qualify for copyright protection. Below are some categories of works that are not protected by copyright, and which you may lawfully copy or adapt without needing to seek permission:

Facts and ideas - Copyright does not protect facts, although it may protect the way facts are compiled or described. Copyright also does not protect ideas; an idea has to be expressed in some kind of fixed format, such as text, a video or sound recording, or an artistic work, in order for it to be eligible for copyright protection.

Public Domain content - Works are considered to be in the public domain when they are no longer protected by copyright. The general copyright term in Canada lasts for the life of the work’s author, plus an additional 70 years, after which copyright expires. Prior to December 30, 2022, the term of copyright was life plus fifty years, and any works that were already in the public domain on that date remain so.  In other words:

  • works of authors or creators who died in 1971 or earlier are already in the public domain
  • works of authors and creators who died in 1972 or later will not enter the public domain until 70 years after the creator’s death.   

Some types of content have their own copyright terms that vary from the general rule, such as unpublished works and sound recordings. An author or creator may also choose to dedicate their work to the public domain at any time, meaning they are relinquishing their copyrights in the work.  In this case, the work is usually clearly marked as being in the public domain.

Insubstantial portions – Copyright does not protect very small portions of a work that would be considered insubstantial.  What will constitute a substantial part of a work varies given the format of the work and must be assessed from both a quantitative and qualitative point of view. Examples of insubstantial portions include short quotations of text, or excerpts that consist of a very small percentage of the work they are taken from.

Content containing consent to copy – Material specifically presented for public use, usually displaying a notice indicating how it may be used. This includes works with Creative Commons or other open licenses, which generally can be copied with minimal restrictions.

Licenses and terms of use

Many copyrighted works, and particularly online works, are made available under the terms of a license.  Electronic journals and e-books, for example, are purchased under a license which dictates how those works are permitted to be used. Subscriptions to streaming services such as Spotify or Netflix are also subject to contractual terms that usually only allow for personal, individual use by the subscriber. Websites and online platforms such as YouTube, or social media sites, have terms and conditions that may limit uses of their content. It is important to locate and read the terms of use on any website or platform before copying or using any content from the site.

Content on the internet may also have an open license, such as a Creative Commons licence, that grants up-front permission for a wide range of uses. For more information about Creative Commons licenses, see  Use Creative Commons Licenses or view the Creative Commons video.  

For information about the terms of use for library-licensed materials, consult the “License Terms of Use” displayed in Omni. For general information about permitted ways the library’s electronic resources can be used, see Acceptable Use of Online Resources.

Fair dealing and other exceptions in the Copyright Act

In addition to the categories above, there are also exceptions in the Copyright Act that may apply to the works you are using.  

Canada’s Copyright Act contains several provisions for copying works without the consent of the copyright owner or the payment of royalties. These "exceptions" allow non-profit libraries, educational institutions, and individuals to make copies within reasonable limits. Fair dealing is the best-known, and the most commonly used exception, as it is available to anyone and allows copies to be made in a wide range of circumstances.

You may need to use a specific image, figure, poem, excerpt of text, video clip, etc., from another work, in order to critique, analyze or examine it in your own work.  Or you may need to copy portions of a work in order to help you study, or do research. The fair dealing exception can enable these kinds of uses, by providing users of copyrighted works with a limited right to copy and communicate those works to others without needing to seek permission from the copyright owner.

Evaluating whether your use of a work is fair dealing

The fair dealing exception in the Canadian Copyright Act permits the copying and communication of protected works to others without permission or payment if certain qualifying factors are met. The Fair Dealing Policy developed by Universities Canada outlines the ways in which fair dealing can be used when copying for educational purposes at the University. Instructors, students, and staff may rely on this policy when making and distributing copies for use in courses.

However, fair dealing can also apply in other contexts. The following is a guide to assessing whether the use of a copyrighted work might fall under the fair dealing exception in circumstances beyond the classroom.

The courts have identified a two-step process for evaluating whether the use of a work might be considered fair dealing:

Step one

The purpose for copying the work must be one of the eight listed in the Copyright Act:

  •     research,
  •     private study
  •     education
  •     parody
  •     satire
  •     criticism
  •     review
  •     news reporting  

Most content that is copied for a scholarly purpose, provided it is not used just for decoration or entertainment, will fall into one of these fair dealing categories.

Step two

If you have determined your use of a work is for a fair dealing purpose, as described in Step One above, you then need to assess whether your use of the copied material is “fair”. Below is a list of six factors, set out by Canadian courts, that need to be considered in order to assess whether your copying is fair. Some of these factors may be more relevant than others, depending on what you are copying and how you will be using it.

It is important to note that while these six factors are useful to consider when conducting a fair dealing analysis, they are not conditions that need to be met. After reviewing the factors, you may conclude some aspects of your use are fair while others are not.  However, you will need to weigh all of the factors together in order to decide if, on balance, your use is fair. Also, since fair dealing involves the weighting of factors, finding one of those factors to be unfair does not automatically make your use of the work unfair.  

1. Consider the specific purpose or objective for copying the work

The perspective to be considered here is that of the ultimate user of the copied work. For example, when an instructor makes copies for a class, it is the purpose of the students who will be using the copies that determines whether the use is fair. Copying done for non-commercial, personal, or educational uses is more likely to be fair than copying which has a commercial or for-profit motive.

2. Consider the amount of work that will be copied

Copying should be limited to only the portion of the work that is necessary to achieve the purpose. This might be a quotation or several pages from a text, or a short clip from a movie or a sound recording. The use of entire figures and images may also be fair dealing in some cases, as it is often not practical to copy only a portion of such works. 

3. Consider how the copy will be used or shared

Making a single, one-off copy is more likely to be fair than multiple and/or widely distributed copies. Copies shared with a limited audience are more likely to be fair than copies posted on a public website.

4. Consider whether there are alternatives to copying

Copying of a work is more likely to be fair if there are no reasonable alternatives to doing so. Your use of a work may not be considered fair if you could easily have used a copyright-free or openly-licensed option, or if you could have achieved your purpose without copying the work in question. On the other hand, if you need to reproduce a specific work in order to review or analyze that work, then your use is more likely to be fair.     

5. Consider the nature of the work being copied

Use of a work that is already freely available to the public is more likely to be fair than using content from a confidential or non-public source, or a source that is protected by a paywall.    

6. Consider the effect of the copying on the market for the original work  

Using significant portions of a book, for example, might impact sales of that book. Or including an entire music video, a poem, or an image in a thesis might result in lost sales for the copyright owner. Limiting your use to short excerpts or lesser-quality images (e.g., thumbnails) that do not compete with the original will make your use more likely to be fair. Also, using content from out-of-print works or other content that is no longer commercially available may be more likely to be fair.

If after evaluating these factors, you determine your copying does not meet the fair dealing criteria, you may need to obtain permission from the copyright owner or seek out alternative content. 

Other copyright act exceptions

Other exceptions in the Act permit some specific educational uses of copyright-protected works, such as:  

  • copying for display in the classroom  
  • copying for tests or exams  
  • classroom performances of works  
  • copying for individuals with perceptual disabilities
  • copying of news programs for classes
  • use of publicly available internet materials.

Each of these exceptions is subject to specific limitations, however. For more information about educational exceptions see Copyright for Instructors.

The Copyright Act also contains some exceptions intended for personal, individual use, that may nevertheless be useful in some educational contexts. Examples of these exceptions include:

  • a Non-Commercial User-Generated Content exception (also known as the “YouTube” or “mash-up” exception) which allows individuals to make copies of one or more copyrighted works in order to create a new work, and permits the newly-created work to be shared publicly, such as on social media sites, provided it is not for a commercial purpose. Examples of how you might use this exception include using a musical recording as background to a slide show of your own photographs, or creating a mash-up of clips from various videos.
  • an exception that allows an individual to copy a work for their own personal and private use. For example, you could use this exception to transfer music from a CD that you own to another device that you own, provided it is only for your personal use.
  • an exception that permits individuals to record communication signals, such as a radio or television broadcast, for viewing at a later time.
  • an exception enabling the making of a backup copy of a work, in case the original is lost or damaged, or becomes otherwise unusable.

Each of the above exceptions contains important limitations that individuals must comply with in order to avoid infringing copyright. For more information, consult the Copyright Act.

Using copyright-protected works with digital locks

When making a copy of a work using fair dealing it is important that you do not circumvent or remove any technological protection measures (TPMs), otherwise known as digital locks, that have been put in place to protect the work you are copying. The Canadian Copyright Act prohibits the removal or circumvention of a digital lock of any kind in order to make a copy of a work. Digital locks are sometimes used by copyright owners to prevent their works from being accessed or copied without permission. Examples include passwords, encryption software, watermarks, and access codes. If a work is protected by a digital lock, generally you may not make a copy even if you would normally be permitted to do so under an exception such as fair dealing. If you want to use a work protected by a TPM, it will be necessary in most cases to seek permission from the copyright owner.

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