Chapter Four: Law and Education

4.17 Copyright

Copyright law is an interesting example of the division between personal and property rights. Written material, music, art, videos, computer software and digital media are considered property, just like a house or a car. Copyright law, which comes under the jurisdiction of the federal government, restricts a person from using someone else’s work without the originator’s permission. Often this law means that one must pay to reproduce by any mechanical or electronic means a book, article, or other material. In other words, the right of the community to benefit from ideas is subordinated to the right of the individual to profit from them.

Until recently, Canada’s copyright law dated from 1924 and did not deal adequately with newer forms of communication such as computer software, digital media, and mass copying. The copyright law has been revised to strengthen the protections to copyright holders. Teachers cannot make multiple copies of an article or play for an entire class. Nor is it permissible to rewrite something in slightly different language and then copy it. Libraries have placed warnings over photocopying machines to discourage people from making illegal copies. Teachers cannot legally record programs for classroom use unless formal permission has been given by the copyright holder. Computer software is sometimes covered by a site licence that allows an organization to use software in all parts of its operation without having to buy multiple copies. Some provincial governments have also negotiated copyright agreements that allow schools to use videos or computer software under certain conditions. Digital media from the Internet can also be problematic. These are frequently used by students but are legally copyrighted and should not be reproduced without permission.

In response to the significant problems that these restrictions threatened to create for schools, colleges, and universities, provincial governments, acting on behalf of schools, entered into agreements with an organization called CANCOPY in order to allow schools to make limited numbers and kinds of copies for non-profit educational purposes. The provinces paid CANCOPY a fee for these rights, and CANCOPY in turn distributed these monies to authors, artists, and any other creators of the work. Most public schools were covered by such agreements that allowed some (but by no means unlimited) photocopying of stories, plays, articles, poems, books, and artistic works. An organization called Access Copyright replaced CANCOPY, and in 2004 attempted to renew its royalty agreements with all the provinces and territories related to teacher copying of materials. The attempt to fix royalties at $5.16 per full-time equivalent student in schools led to much contention from ministers of education, particularly in Alberta.  Access Copyright appealed to the Copyright Board of Canada, and the case of Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright) moved its way through the courts until a Supreme Court decision was made in 2012. The primary issue related to whether the copying of materials by teachers fell under the fair dealing exception in s. 29 of the Copyright Act. It was found that the copying of excerpts fell under the purview of “research or private study” covered by the Act. In the determination of whether the teacher copying was fair, the Supreme Court held that teachers did not have an ulterior or commercial motive in providing students with copies, and that it was not realistic to require teachers to purchase textbooks for each student as opposed to copying short excerpts.

In 2018, the Council of Ministers of Education Canada (CMEC) released the Education Ministers Policy Statement on Fair Dealing to support the provisions in the Copyright Act. It has also published Fair Dealing Guidelines (2019) for teachers and administrators that are articulated in Box 4.17.1. In 2016, the CMEC collaborated with the Canadian School Boards Association and the Canadian Teachers Federation to create Copyright Matters (Noel & Snell, 2016), a resource that provides information on copyright law for teachers, administrators, parents and students.

Box 4.17.1

Council of Ministers of Education Canada Fair Dealing Guidelines

  1. Teachers, instructors, professors, and staff members in non-profit educational institutions 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.
  2. Copying or communicating short excerpts from a copyright-protected work under these Fair Dealing Guidelines for the purpose of news reporting, criticism, or review should 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 provided or communicated to each student enrolled in a class or course
    a) as a class handout;
    b) as a posting to a learning or course-management system that is password protected or otherwise restricted to students of a school or postsecondary educational institution;
    c) as part of a course pack.
  4. A short excerpt means:
    a) up to 10 per cent of a copyright-protected work (including a literary work, musical score, sound recording, and an audio-visual 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 copyright-protected work with the intention of copying or communicating substantially the entire work is prohibited.
  6. Copying or communicating that exceeds the limits in these Fair Dealing Guidelines may 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.

Source. Adapted from CMEC (2018). Fair Dealing Guidelines



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