This web page is currently being updated to reflect recent changes in Canadian copyright laws, specifically the adoption of the Copyright Modernization Act. For more information on the state of copyright in Canada, see the Government of Canada’s Balanced Copyright website.
The information in this guide is not meant to be legal advice.
The purpose of this guide is to assist faculty and students in making their own decisions based on a better understanding of their rights and responsibilities. This guide mostly addresses copyright in the context of research and education. It does not aim to provide final answers as to what can and cannot be legally done according to the Copyright Act.
Members of the Concordia University community should consult the University's Policy on Copyright Compliance. In case of doubt, please seek legal assistance.
For more information, see the list of useful Web sites.
In Canada, copyright is governed by the Copyright Act (R.S.C. 1985, c. C-42) which regulates the use and reproduction of intellectual and artistic creations.
Copyright protects works from being copied, performed or distributed without the permission of the copyright holder, usually the author or the creator of the work, and provides exceptions for special circumstances.
Copyright automatically applies to original works such as books, articles, videos, music, paintings, photographs, digital works, broadcasts and performances.
Ideas and facts are not protected by copyright. Only works that are original and fixed are protected by copyright. A work is "fixed" when it is produced onto any media, like paper or within a digital file. A work is considered "original" when it is the product of the author's own skill, judgment and creativity, has not been copied and demonstrates more than a trivial, mechanical level of skill and judgment.
For instance, statistical data on the Montreal population is not protected, but a table presenting these data in a specific way may be.
Although the Copyright Act was written before digital content was widely available, digital works such as CDs, DVDs, Web sites and other online documents and files are protected by copyright. Fair dealing and educational exceptions apply to digital works just as they do for other types of documents. Library electronic resources, such as subscription databases and ejournal collections, are usually also regulated by licence agreements.
The length of copyright is usually 50 years after the death of the creator. Some types of works such as sound recordings and some photographs and films may have a different length of copyright. After copyright expires, a work becomes part of the public domain and may be freely copied and distributed.
Works that are not under copyright are part of the "public domain" and can be freely copied, distributed, adapted and performed without permission from the author or the payment of royalties.
Before copying, adapting, distributing or performing a copyrighted work, consider if:
In addition, at Concordia University, the Policy on Copyright Compliance has specific rules for our community.
The Copyright Act (s.3) protects substantial parts of works as well as whole works.
Since "substantial" is not defined in the Act, the quantity and importance of what is being copied must be evaluated. In deciding whether a part of a work is considered substantial, the whole work must be taken into account. A few sentences from a novel would probably be considered insubstantial but a single line from a poem might be essential to the work and be considered substantial.
"Fair dealing" offers some exceptions to the Copyright Act's general prohibition on copying. Fair dealing allows limited and non-commercial copying for the purposes of research or private study, criticism, review, and news reporting.
Proportionality is important in considering if use of a work might be considered fair dealing. In the CCH Canadian Ltd. v. Law Society of Upper Canada  decision, the Supreme Court proposed the following criteria for evaluating whether a dealing is fair:
The purpose of the use, the amount to be used and alternatives available have to be considered, and must outweigh the nature and the effect of the dealing on the work.
Everyone benefits from fair dealing. However, educational institutions, libraries, museums and archives have additional special provisions (s.29.4 to 30; s.30.2 to 30.4)
In Canada, fair dealing as defined by the Copyright Act is more restrictive than the fair use provisions in the United States, particularly in regards to education and teaching.
For example, in the United States, showing films or videos in a classroom without special permission or performance rights is permitted. In Canada, public performance rights must be acquired to show a video or film in a classroom.
The United States also allows making copies of works for distribution in class. In Canada, it is forbidden to do so without special agreement or payment to the copyright owners, such as via the Copibec licence.
For additional information on the differences between fair dealing in Canada and fair use in the United States, see the summary table prepared by the Association of Universities and Colleges of Canada.
In Canada, teaching is not listed as an example of fair dealing and is only covered in the specific educational exceptions as outlined below.
(s. 29.4 to 29.9)
Under certain conditions, educational institutions or persons acting under their authority can make limited copies for instruction and examinations:
Canadian libraries, archives and museums benefit from exceptions that facilitate the delivery of print and electronic works. They may do anything that individuals may do for themselves as long as it is for private study, research, criticism or review (sections 30.1 to 30.4). For example, library personnel are allowed to make a copy of an article to be placed on course reserve for a faculty member.
The Copyright Act (s.32) allows copying of literary, musical, artistic or dramatic works, to create a document in a format specifically designed for persons with perceptual disabilities. This exception does not apply in cases where the work is commercially available in an appropriate format or for cinematographic works.
Licences are contracts that regulate the reproduction and use of works in addition to the requirements of the Copyright Act. Some licences impose further restrictions on the use and reproduction of works and some waive certain rights that are part of the Copyright Act. In the context of a university, faculty and students should know about the following types of licences:
Works that you have created are also subject to copyright. Publishing agreements may assign or licence a broad range of rights to the publisher. The following Internet sites provide information about publisher policies or alternatives:
Creators who want to facilitate the dissemination of their works while preserving ownership rights should consider using one of the licences proposed by Creative Commons.
Whether in print or digital form, text is protected by copyright. Most formats are protected, such as books, articles, Web sites and their components, as well as most types of works, such as poems, plays, novels or essays.
One may make a copy of a portion of a work if it is fair dealing or if a special exception in the Copyright Act permits it. Otherwise a special agreement must exist between the copyright holder and the user, such as through a licence agreement.
The Copibec licence governs the creation of course packs, which are, technically, multiple copies of works. As well, this licence allows for making multiple copies of a work for free classroom distribution. The photocopies must not exceed the lesser of 25 pages or 10% of the total work. In addition, a full article can be copied, as well as a full chapter from a book, as long as it does not exceed 20% of a book. Note that not all publishers are represented by this licence. Verify the Copibec site for details. The publisher of the work must not be in the Copibec exclusion list.
It is important to understand that the Copibec licence does not apply to users' fair dealing rights.
How much or how little one can deliver electronically to one or many colleagues, students or staff depends upon the fair dealing provisions of the Copyright Act.
Proper citing of sources is essential in academic work. However, it is not part of copyright. For more information on citing and quoting material, consult the Academic Code of Conduct as well as A guide to academic integrity. Guides to citation styles (such as MLA, APA) are available on the Libraries' Web site.
Cinematographic works include "any works expressed by any process analogous to cinematography, whether or not accompanied by a soundtrack" (s. 2). The term video/DVD in this section refers to various storage formats for motion pictures, including VHS, beta and u-matic tape, as well as 16mm and 35mm films.
Canadian copyright on cinematographic works governs the right to:
Works that are in the public domain are not protected by copyright and can be used and copied freely. For dramatic cinematographic works (most feature films), copyright lasts for 50 years after the creator's death; for non-dramatic works (e.g. documentaries), copyright lasts for the remainder of the calendar year of publication plus 50 years. It can be difficult to determine who is the creator of a cinematographic work; the best way to find out who holds copyright and whether or not a title is in the public domain is to contact the production company, distributor or licensing agent. You may be able to find this information in the Internet Movie Database.
Videos/DVDs cannot be shown in public places, including classrooms, without public performance rights (s. 29.7 (3)), which are granted by the person who owns the copyright. A "public place" is not defined specifically in the Copyright Act but is a place that is not a private home, so, a classroom or student union building are considered public. Even if the video is being shown for educational purposes, and no admission is being charged, you must secure public performance rights. This applies even if the video was purchased from an American company.
If you plan to charge admission to a public showing of a video, special rules may apply, and you should contact the copyright holder to confirm arrangements.
Videos may be obtained from a variety of sources, both on and off-campus. Public performance rights (the rights to show the film in public), are distributed at the title level, not according to which company sells or distributes the video/DVD. For example, just because a video was purchased from a particular company (even if it specializes in educational films) does not necessarily mean it will come with public performance rights - rights for each title must be investigated. The information below can help you find out whether videos and DVDs have public performance rights.
Concordia University has public performance license agreements with Criterion and with Audio Cine Inc. Films covered by the agreements must be legal copies and may be obtained from a library, video/DVD store, or your own personal collection.
The Criterion license agreement covers all films from the producers/studios listed on the Criterion website with the exception of Mongrel Media. To find out if a film you would like to show in class is covered by this agreement, please check the list of producers/studios on the Criterion website.
The Audio Cine Films Inc., license agreement includes all films listed on the Audio Cine website . Films can be searched by title, director and genre.
Videos/DVDs generally cannot be copied without written permission from the copyright holder. Exceptions to this are works that are in the public domain, works that allow copying under licence, or if the use falls under fair dealing.
When using clips in one's own work, the following should be considered:
The Copyright Act was written before digital content was common and so does not address digital formats. However you can use the principles of the Act to determine how to proceed on issues relating to digital works.
Most online content will have a use agreement of some kind that must be consulted prior to showing in class, saving, or using in your own work. Even if the content is available freely on the Web, it is still covered by copyright and you may have to request permission to show it in class. For example, the CBC has an FAQ page for use of their digital content. For live television programs, see the section on Radio and Television Broadcasts.
Exceptions to this include digital content that is obtained by the Libraries, where a licence agreement has been negotiated.
You can reproduce and perform a copyrighted work, on the premises of an educational institution, if it is for a test or examination and is not commercially available.
A single copy of a news program or news commentary program (excluding documentary programs) may be taped for replaying in the classroom for educational purposes for one year after the original broadcast.
After one year, the copy must be destroyed or royalties paid to copyright owner through the Educational Rights Collective of Canada.
Records must be kept of all such recordings by the educational institution with information as to the date the recording was made, any rights clearance, and the date the recording was erased or that royalties were paid.
A copy of any broadcast may be made and kept for 30 days to be evaluated for educational use. After 30 days, the broadcast must be destroyed or royalties paid. This evaluation copy may not be shown in class without payment of royalties to the copyright holder.
Live radio and television programs may be shown in the classroom while being broadcast.
You can reproduce and perform a copyrighted work, on the premises of an educational institution, if it is for a test or examination and is not commercially available.
A sound recording, according to the Canadian Copyright Act, includes "a recording fixed in any material form, consisting of sounds, whether or not of a performance of a work, but excluding any soundtrack of a cinematographic work where it accompanies the cinematographic work."
Sound recordings may have multiple copyright protections:
Section 29.5 of the Copyright Act allows the playing of a sound recording on the premises of the educational institution "for educational or training purposes and not for profit, before an audience consisting primarily of students of the educational institution."
Audio broadcasts may not be copied and played later in class except under special conditions.
Copying a sound recording that includes a musical work for individual personal use onto a "blank audio recording medium" as defined by the Copyright Act is permitted. You cannot copy a sound recording for someone else or for any other purpose including selling/renting out, distributing, communicating to others, or performing the recording in public. The Copyright Act has established a system of levy fees on blank media for providing royalty payments to composers, performers and sound recording producers. (s.8). In Canada, the Canadian Private Copyright Collective is responsible for collecting and distributing private copying royalties.
Aside from the special exceptions for news broadcasts, you cannot generally copy a sound recording that does not include a musical work.
Special exceptions exist for persons with perceptual disabilities for reproducing a sound recording in alternative formats.
Distributing a sound recording, such as making it digitally available through the Web, making copies for students etc., requires the payment of royalty fees.
The Neighbouring Rights Collective of Canada collects and distributes royalties for distribution and/or broadcasting of sound recordings.
Some exceptions may apply under the fair dealing provisions.
Adaptations, performances and translations of works are subject to copyright (section 3 of the Copyright Act).
Adapting copyrighted material requires permission from the owner of the original work. Reproduction or performance of an adaptation may require the permission of both the owner of the rights for the original work, and of the rights' holder for the adapted work.
Permission to translate substantial portions of a work must be obtained from the owner of the original work. Translations also are considered original works and are protected by copyright. This is true even if the original work has become part of the public domain. Reproduction or performance of a translation may require the permission of both the owner of the rights for the original work, and owner of the rights for the adapted work.
A special exception (article 29.5), permits educational institutions to use copyrighted materials in order to:
This exception applies:
Images of artistic and visual works covered by the Copyright Act include: paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship, architectural works, and compilations of artistic works. Copyright in general continues for 50 years following the year of the producer's death after which the work comes into the public domain.
Photographs have the following added conditions: commissioned photographs belong to the person or organization making the commission. Photographs are covered by copyright for 50 years after the photograph is taken.
Although many images are already available in digital format from various sources, there are numerous images which are available only in paper or slide format. Such images which are covered by copyright can be scanned if they fall under the exceptions outlined in the following sections.
According to Section 29.4 of the Copyright Act, educators can copy a work to project an image of that copy using an overhead projector or similar device. It is arguable that a "similar device" includes data projectors (PowerPoint presentations). However, this exemption does not apply if the image is commercially available on the Canadian market and can be acquired within a reasonable time and for a reasonable price.
Images from commercial databases (ARTstor) for which the library has a licenced agreement can be used in classroom presentations.
Generally, it is necessary to obtain permission to copy as well as distribute a copyright protected work on the Internet, unless it is from a licenced database. However, it is also arguable that images can be used under the following conditions:
You can reproduce copyrighted images for a test or examination given on the premises of an educational institution.
Fair dealing (Section 29.1) allows you to make copies of images that are copyright protected for the purposes of research, private study, criticism, and review.
The Copyright Act protects substantial parts of works which implies that insubstantial parts of copyrighted images can be used. However, there is no clear definition of what constitutes substantial or insubstantial. While some contemporary artists are proponents of using any images in the practice of appropriation art (see the Appropriation Art Web site), such derivative works do not clearly enjoy the benefit of fair dealing. See the viewpoint of CARFAC, the Canadian Artist Representation/le Front des artistes canadiens.
Images in ARTstor can be used for classroom instruction and related classroom activities, student assignments and research, research activities of faculty, public display or public performance as part of a noncommercial scholarly or education presentation, in research and dissertations. Uses of images not permitted by ARTstor include: commercial - such as scholarly publications available for purchase, public performances, as well as adaptation of images for derivative works.
Although there are Web sites that allow free downloading of images, mostly for personal use only, many Web sites include copyrighted images. Permission to use images must be obtained from the copyright owner.
The following Canadian Web site, prepared by the 2Learn.ca Education Society, provides an overview of how to determine the copyright status of images on the Internet: Digital Images and Copyright.
It covers such questions as: