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What Is Copyright and How Does It Apply to Students?
Copyright is the federal legal protection afforded to literary, dramatic, artistic, and musical works, sound recordings, performances, and communications signals. In Canada, copyright is protected by the Canadian Copyright Act. As a legal regime, copyright generally provides to a work's owner the legal right to exclude all others from exploiting the work on the basis that the right to do so is exclusively theirs. Effectively the law gives copyright owners grounds on which to demand that they be paid for the reproduction, publication and distribution of their work.
Students encounter and engage with copyrighted works every day. It is likely that nearly all of the books, presentations, movies, and digital and hard copy materials that students use in their classrooms, research, and in their studies are copyrighted materials.
Because copyright protects most of the works that students engage with and rely upon, it is important that students understand the basics of copyright law, what constitutes infringement and know when exceptions may apply to the copyright owner's exclusive rights.
Reproducing a substantial portion of a copyrighted work without permission is infringement UNLESS an exception applies
Unless an exception to the law applies (like fair dealing, discussed below), making copies of a copyrighted work without permission is called copyright infringement. These copies need not be physical, like photocopies, need not be reproductions of the work in the same form, and need not be reproductions of the entire work. For copying to constitute copyright infringement, a substantial part of the work must have been copied. What exactly is meant by substantial has been the subject of discussion by the courts, and while some guidelines have been laid out, what is substantial is a complex, contextual inquiry and students should avoid relying on the degree of substantiality to avoid legal liability. Being caught breaking the law by making copies of a work without permission can carry serious legal and financial consequences.
Fair Dealing – an exception to copyright law
Section 29 of the Copyright Act sets out certain circumstances in which others may reproduce or otherwise utilize a copyrighted work without express permission from the copyright owner. If these circumstances exist, reproduction without authorization does not constitute infringement and will be permissible. This is called fair dealing and is very relevant to students' uses of copyrighted works.
When fair dealing applies
The Copyright Act permits the unauthorized reproduction and use of a copyrighted work for the following purposes: research, private study, education, satire, parody, criticism, review or news reporting. So long as the reproduction of the work is for one of these enumerated purposes and the dealing is "fair", the unauthorized reproduction will not constitute infringement.
Accordingly, many of a student's uses of copyrighted works will be permissible under the fair dealing laws. After all, copyright law is not out to limit education and intellectual growth. On the contrary – the important exception of fair dealing has been written into the law precisely to permit and encourage the "user" (in this case the student) to engage with, reference and even reproduce aspects of, or whole works in their pursuit of education, research or private study.
In Canada, fair dealing is a user's right that is interpreted broadly, particularly in the context of education, research and private study.
In York University v. Canadian Copyright Licensing Agency (Access Copyright), the Supreme Court of Canada provided guidance on the topic of fair dealing, opining that an assessment of whether a dealing is a fair dealing, particularly in a case like this one which involved the reproduction of copyrighted works for the benefit of students, should not overlook the nature of the individual use and the individual user’s right to receive material for educational purposes in a fair manner.
Assessing whether your dealing with a work is fair
The following considerations are relevant to assessing whether a dealing with a work is "fair" so as to come under the exception for fair dealing:
- the purpose of the dealing (the reason for the unauthorized reproduction). Is the reproduction for purposes of citing a famous author or expert in a research paper? If so, it will almost certainly be considered fair.
- the character of the dealing (how the work is dealt with – were many copies made, or only the amount absolutely necessary). Have you reproduced one thousand copies when one would have sufficed? If so, this may not be the fairest dealing of the work.
- the amount of the dealing (how much of the work is used) Could unauthorized reproduction of a lesser amount of the work have sufficed? Reproduction of a trivial portion of the work will not constitute infringement in the first place.
- alternatives to the dealing. If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work that would be seen to be fairer.
- the nature of the work. Although this won’t typically be an issue for students, was the work previously unpublished (did reproduction lead to wider dissemination of the work – a goal of copyright law) or confidential?; and
- the effect of the dealing. If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair).
It is important for students to consider these factors when choosing to reproduce a work without authorization to determine whether their use of a work will be protected by the fair dealing exception. Students should note, however, that their own assessment of these factors may differ from the position that may later be taken by a court in the event of a legal dispute pertaining to the unauthorized reproduction. There is always a risk that the court will disagree with the conclusion that the dealing was fair.
In summary, student should use their best judgment in dealing with copyrighted works, and, when in doubt, and where possible, obtain permission from the author of a copyrighted work before reproducing it.
The term of copyright and the public domain
As of December 30, 2022, the term of copyright in Canada is life-plus-seventy, an extension of twenty years from the former term of life-plus-fifty; that is to say, copyright protection now lasts for the duration of the lifetime of the author, plus seventy years from the end of the calendar year of their death. This extension is one of the amendments to the Copyright Act articulated in Division 16 of Part 5 of Bill C-19 The Budget Implementation Act, 2022, which received royal assent on June 23, 2022. Extending the copyright term will fulfill one of Canada's outstanding obligations under the Canada-United States- Mexico Agreement (CUSMA), which came into force on July 1, 2020, and bring Canada in line with its trading partners. The extension of the copyright term is not retroactive. If, for example, an author died on June 1, 1970, copyright in their works expired on December 31, 2020. Works protected by copyright on or after December 30, 2022 will receive an additional 20 years of protection. However, any works whose copyright expired before December 30, 2022, will not receive an additional 20 years of protection.
When copyright expires, works are said to enter the public domain and any person may legally copy the work without infringing the rights of the owner. Accordingly, works in the public domain are free to be used without permission and without restriction in the educational context and beyond. While there is no legal requirement to attribute works in the public domain to their creators, doing so is widely considered to be an important part of maintaining academic integrity and not crediting the author may result in a student being disciplined for plagiarism.
The difference between infringement and plagiarism
As explained above, copyright infringement occurs when you reproduce someone else's copyright-protected work without authorization. Infringement carries legal consequences such as potential liability for monetary damages. Plagiarism is the act of taking credit for a work, or part of a work, you did not author or using someone else's work without giving credit to the author. Note that it is possible to avoid copyright infringement by reproducing a work under the fair dealing exception but still end up on the hook for plagiarism as a result of having failed to credit the author. Plagiarism, however, is an academic offence, whereas copyright infringement is a legal offence.
Consulting your Institution’s Copyright Resources
Students of post-secondary institutions likely have a resource, or set or resources, made available to them by their institution that act as policies, guidelines, or frameworks as they pertain to students of the institution and copyright. It would be prudent for students to review their institution’s resources as they can provide a wealth of information related to copyright, including details as to what students are and are not permitted to do, as well as how students may or may not interact with systems and resources that their specific institution is using or licensing. These resources often offer concise, step-by-step instructions and flowcharts illustrating the steps students must take in determining whether, for example, they are able to use works from the internet in a specific way for their schooling needs. These resources may also go into further details with respect to fair dealing, or they may place a specific emphasis on certain aspects of copyright law based on what the institution believes is most relevant to their students. Additionally, the resources may refer to other institute-specific considerations that students should keep in mind, as well as other institute-specific resources that students may wish to consult or use with respect to their copyright needs.
Some additional considerations for students
While virtually all educational uses of a copyrighted work are likely to render the use "fair", students should be acutely aware of copyright law, how it works and when it does and doesn't apply. Just because you are permitted to copy a work for educational purposes under the purview of an exception to the law does not mean that copyright no longer applies. Remember that where an exception for unauthorized reproduction might apply for educational purposes, the same exception may not apply for commercial use of the work. Students may also create works that can be protected by copyright. Students should be aware of how and when copyright subsists in a work to know when they can exclude others from exploiting their works without permission.
For more information about when copyright applies to your original works, please visit our copyright FAQ.
