Canadian Copyright Law: Current Issues for Librarians

Canadian Health Libraries Association/ Association des bibliothèques de la santé du CanadaMay 27, 2008Dr. Teresa Scassa

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Overview

1. Basic principles of copyright law

2. Fair dealing for libraries and universities

3. Copyright law and licences

4. Copyright law reform

5. Open access

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1. Basic Principles of Copyright Copyright subsists in: “every original literary,

dramatic, musical and artistic work” Categories are defined broadly: e.g., literary

work includes computer programs, menus, fillable forms, grocery lists, etc.

Includes compilations of other “works” and compilations of data

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Basic Principles: Purpose of Copyright “The Copyright Act is usually presented as a

balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.” (Théberge v. Galerie d’art du Petit Champlain, SCC 2002)

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Basic Principles: Ownership

Author is generally first owner of copyright No requirement to register Employer may own copyright of work done by

employees Creators of compilations (such as journals,

periodicals, anthologies, etc) have a copyright that is separate from the copyright in the individual works in the collection

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Basic Principles: Term of Copyright and Public Domain Term is generally life of author plus 50 years Once copyright is expired, work is in “public

domain” and no permission is needed for copying

But new editions of public domain works, especially if annotated, will be protected by copyright

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Basic Principles: Crown Copyright Government materials (including statutes,

regulations and court decisions, reports, studies, etc.) are protected by Crown copyright

Use of these materials are licensed by either the federal or provincial crowns

These materials are not covered by the agreement with Access Copyright (CANCOPY)

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Basic Principles: Rights in Research Data?

Under the Copyright Act, there is no copyright in data, only in “a work resulting from the selection or arrangement of data”

Selection or arrangement of data must be original for copyright to subsist

Copyright extends to original selection or arrangement, but not to underlying data

But some data may be effectively protected by copyright

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Basic Principles: Owners’ Rights

These are provided for in s. 3(1) of the Copyright Act, and they include: Right to produce, reproduce, perform in public,

publish Translation and adaptation rights Right to communicate the work to the public by

telecommunication Right to authorize the exercise of any of the

owner’s rights

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Basic Principles: Infringement Copyright Act, s. 27 Infringement involves doing anything without

the consent of the owner of copyright that only the copyright owner has the right to do

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Basic Principles: Moral Rights All authors have moral rights in their works These cannot be assigned, only waived Moral rights include the right to the “integrity”

of the work, and the right to be associated with the work by name, pseudonym, or the right to remain anonymous

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Basic Principles: Infringement of Moral Rights Right of integrity is only infringed if work is

“distorted, mutilated or otherwise modified” or “used in association with a product, service, cause or institution”

Use or modification must be in a manner which is “to the prejudice of the honour or reputation of the author”

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Basic Principles: Fair Dealing

1. Must be for limited purposes set out in ss. 29, 29.1 and 29.2 of the Copyright Act: Research or private study Criticism or review News Reporting

2. Must also be “fair”

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2. Fair Dealing for Libraries & Universities CCH Canadian Ltd. v. Law Society of Upper

Canada (Supreme Court of Canada, 2004): Major decision on authorization, fair dealing Specifically in library context

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Fair Dealing for Research or Private Study Research may be commercial or non-

commercial Private study does not include making copies

for a class Use must still be “fair”: SCC has developed a

set of guiding principles

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“Fair” dealing considerations

Purpose of the dealing Character of the dealing Amount of the dealing Alternatives to the dealing Nature of the work Effect of the dealing on the work

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Other exceptions the Copyright Act Sections 30.1-30.4 deal specifically with uses

by libraries of copyright protected works

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Copying of works in the library’s permanent collection (s. 30.1) Permitted where:

necessary for maintenance/management of the permanent collection AND

The original is rare/unpublished, is deteriorating, damaged or lost (or at risk of being so)

The copy is necessary for an on-site consultation and original is not in a condition to be viewed or handled

The original is in an obsolete format AND there is no appropriate commercially available

copy

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Copying of works in the library’s permanent collection (cont’d) For purposes of internal record-keeping or

cataloguing For insurance purposes or police

investigations If necessary for restoration

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Libraries and Patrons’ Research or Private Study (s. 30.2) Libraries can only make copies on behalf of

individuals where the activities of those individuals fit within fair dealing for research or private study, criticism or review

Photocopies may be made for patrons of: Articles in scholarly, scientific or technical journals Newspapers or periodicals published more than a year

before copy is made BUT ONLY IF

The patron requires the copy for research/private study Only a single copy is made

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Libraries and Patrons’ Research or Private Study (cont’d) Exception does not apply to works of fiction

or poetry, or dramatic or musical works Copies can be made on same terms for

patrons of other libraries (interlibrary loan), but NOT in digital form

Any intermediate copy that is made must be destroyed once the interlibrary loan transaction is complete

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Record-keeping requirements – Regulations SOR-99/325 Regulations authorized by the Copyright Act set out

detailed record keeping requirements for copies made under s. 30.2 (copies for patrons and interlibrary loan)

Records must be kept for at least three years No records required to be kept where the library is

doing something on behalf of a person that that person would be permitted to do under s.29 (fair dealing for research or private study ) or 29.1(fair dealing for criticism or comment)

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Records of copies made for patrons or on interlibrary loan must include: (a) the name of the library, archive or museum making the copy;

(b) if the request for a copy is made by a library, archive or museum on behalf of a person who is a patron of the library, archive or museum, the name of the library, archive or museum making the request;

(c) the date of the request; and (d) information that is sufficient to identify the work, such as (i) the title, (ii) the International Standard Book Number, (iii) the International Standard Serial Number, (iv) the name of the newspaper, the periodical or the scholarly, scientific or

technical periodical in which the work is found, if the work was published in a newspaper, a periodical or a scholarly, scientific or technical periodical,

(v) the date or volume and number of the newspaper or periodical, if the work was published in a newspaper or periodical,

(vi) the date or volume and number of the scholarly, scientific or technical periodical, if the work was published in a scholarly, scientific or technical periodical, and

(vii) the numbers of the copied pages.

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Libraries and Photocopy Machines Copyright Act provides that a library will not

infringe copyright by providing photocopy machines to patrons: The machine is installed for use by patrons And there is a copyright notice above the machine The library has entered into an agreement with

the appropriate collective society (AccessCopyright)

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Wording of notice

The wording of the notice is prescribed by regulations (SOR/99-325) and must contain at least the following:

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Warning notice

“WARNING! Works protected by copyright may be copied on this photocopier

only if authorized by (a) the Copyright Act for the purpose of fair dealing or under

specific exceptions set out in that Act; (b) the copyright owner; or (c) a licence agreement between this institution and a collective

society or a tariff, if any. For details of authorized copying, please consult the licence

agreement or the applicable tariff, if any, and other relevant information available from a staff member.

The Copyright Act provides for civil and criminal remedies for infringement of copyright.”

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Libraries and Fair Dealing

SCC has said that providing photocopy machines in libraries does not make libraries automatically liable for authorizing infringement of copyright

Libraries must have a copying policy in place Libraries can rely on “fair dealing” of their

patrons

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Libraries and Fair Dealing

The ability of libraries to rely on fair dealing of patrons is notwithstanding any other provisions in the Copyright Act which deal with libraries. (CCH Canadian)

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Educational Institutions

Manual reproductions on flip chart or dry erase board permitted (for purposes of education and on premises of institution)

Making a copy for overhead projection is permitted (for purposes of education and on premises of institution) Only if work is not commercially available in

suitable format

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Fair Dealing Best Practices

Policy of Great Library of Law Society of Upper Canada: http://rc.lsuc.on.ca/library/services_access.htm

Concordia University: http://web2.concordia.ca/Legal_Counsel/policies/english/SG/SG-2.html

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3. Copyright Law and Licences Licencing agreements may significantly

affect/remove fair dealing rights Licenses with copyright collectives will set

rules for what kinds/amounts of copying is permitted, and in what contexts

End user licence agreements that accompany digital products and databases may also place significant additional limitations on use and copying

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Copyright and Collective Management The Copyright Act provides for collective

societies to organize the collective management of copyrights

These exist and are active with respect to a very broad range of works

A full list of collective societies in Canada is available at: http://www.cb-cda.gc.ca/societies/index-e.html

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Collective Management

The objective of copyright collectives is to make it easier for users to licence uses of copyright protected works, and to make it easier for rights owners to actually be paid for uses of their works

The major collectives governing reprography are Access Copyright and COPIBEC

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CANCOPY (Access Copyright) Agreement

Interlibrary loan fees cannot exceed cost of making copy plus Access Copyright royalties

Obligation to inform professors, students and library staff of terms of agreement

Posters detailing terms and conditions of copying under Agreement must be posted by photocopiers

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CANCOPY (Access Copyright) Agreement No authorization of dissemination or

distribution of any works in any electronic form

Copies not for sale: No copying to exceed 10% of a Published work, or: Newspaper article or page of a newspaper Shor story, play, poem, essay or article from a

book or periodical containing other works

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CANCOPY (Access Copyright) Agreement Copies not for sale: No copying to exceed

10% of a Published work, or: An entire entry from an encyclopedia, dictionary,

annotated bibliography, etc. An entire reproduction of an artistic work froma

book or periodical containing other works An entire chapter which is less than 20% of a

book

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Digital Rights

With very few exceptions, the Access Copyright license does not permit digital reproduction of works

Basic fair dealing considerations are likely to be very different with digital copies

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Remedies for infringement

Damages and or profits which flow from the infringement

Injunction Delivery up of infringing works Statutory damages

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Statutory Damages (s. 38.1)

Copyright owner may elect statutory damages instead of other remedies

Amount ranges between $500 and $20,000 for all infringements involved in the proceedings

If the defendant has not paid applicable royalties, a collective society may opt to recover statutory damages of 3 to 10 times the amount of applicable royalties

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4. Copyright law reform?

Liberal’s Bill C-60 would have had an impact on a number of education/library related issues

Bill C-60 died with Liberal government Indications are that Conservatives will

introduce a substantially different Bill

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Law Reform

Key points in Bill C-60 for libraries/universities: Would have permitted digital reproductions of

works for education or training purposes related to distance education IF Had a licence with a copyright collective Pays royalties under the licence for the digital

reproductions and complies with other terms Takes measures to prevent further reproduction

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Law Reform

Bill C-60 would have permitted digital document delivery if steps were taken to prevent any further communication or reproduction of the work (other than a single printing) or to limit its use for a period of no more than 7 days

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Other issues on reform agenda New measures to prevent alteration or

removal of rights management information New measures to prevent interference with

technical protection measures (TPM’s) “Making available right” Rules regarding liability of ISPs and web

hosts for hosting infringing materials

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TPMs and fair dealing

Strict protection for TPMs may mean that these measures may not be circumvented for fair dealing purposes

Digital rights management (DRM) techniques may also limit the ability to copy digital works

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5. Open Access

“When copyright holders consent to OA, what are they consenting to? Usually they consent in advance to the unrestricted reading, downloading, copying, sharing, storing, printing, searching, linking, and crawling of the full-text of the work. Most authors choose to retain the right to block the distribution of mangled or misattributed copies. Some choose to block commercial re-use of the work. Essentially, these conditions block plagiarism, misrepresentation, and sometimes commercial re-use, and authorize all the uses required by legitimate scholarship, including those required by the technologies that facilitate online scholarly research.” (Open Access Overview: http://www.earlham.edu/~peters/fos/overview.htm)

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Creative Commons Licence

Creative Commons is now an international movement

Canadian branch is Creative Commons Canada http://creativecommons.ca/

Creative Commons licence provides accessible, upfront terms of use, reproduction etc.

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Canadian Public Domain Registry Joint project of Creative Commons Canada

and Access Copyright Idea is to create a database of works (print,

photographs, etc.) that are in the public domain

http://www.creativecommons.ca/blog/wp-content/uploads/2008/04/pdregistryca-pd_flowchart.pdf

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Open Access

Granting agencies (SSHRC, NSERC, CIHR) have identified two main routes to open access:

1. Self-archiving in institutional repositories that are accessible to the public

2. Open access electronic journals that are peer reviewed and provide free public access to the contents

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Thank You!