Copyright and User Rights - A Definition of Terms INTRO MUSIC HOST Welcome to our podcast, taking a look at Canadian copyright law and User Rights. Today we will learn the current legal definitions of Copyright and Fair Dealing or User Rights. Since the development of digital technologies there have been vast changes in how people make and access copies of other people’s work In recent years there have been significant changes and amendments to the Copyright Act and a new review is scheduled for 2017. So, for educators interested in using Open Educational Resources, understanding copyrights and user rights can be a bit intimidating. To help us gain a better understanding of Copyright we spoke with Jim Swanson, a Calgary lawyer who specializes in Intellectual Property and Copyright Law. JIM SWANSON So I’ll try to cover copyright law in a nutshell but this is going to be only a general overview and it’s definitely not to be relied on as legal advice. I’m hoping it will be of some assistance, but my remarks today are going to be general and they may not be applicable in a specific case. It should also be kept in mind that Copyright law and the way in which the courts interpret it, of course, it is constantly evolving. There’s always new things coming out. HOST Because copyright law is constantly evolving it may be difficult for many Canadians to keep up with the current rules and regulations. We asked Jim to provide a brief overview of the current state of copyright law in Canada. JIM SWANSON The Copyright laws of Canada can be found in the Copyright Act, which is a statute passed by the Parliament of Canada. And it, over the years, it’s been amended, sometimes quite heavily. There are also international treaties which Canada has ratified, so, Canada has obligations under those treaties that end up being expressed by way of amendments to the Copyright Act. And so on occasion, the Copyright Act can change pretty significantly- like it did back in 2012 with a lot of new things coming in to fulfill obligations under treaties. Copyright in Canada is exclusively federal jurisdiction. The Provinces don’t have any jurisdiction or copyright at all, so only the Federal Government can legislate an area of copyright. In terms of jurisdiction of the courts; only the Federal Court of Canada can deal with the validity of a copyright. court, only the federal level of court can determine the of validity of copyright. But on the other hand a copyright holder can sue for infringement in either the Federal Court or in the Superior Court of a province, such as in Alberta: the Court of Queen’s Bench. The 2 courts have what we call concurrent jurisdiction, but the Court of Queen’s Bench cannot rule on the validity of copyright. Copyright is what lawyers call a creature of statute, which means there’s no common law right to copyright. It’s only what’s found in the Copyright Act or other federal legislation. Of course, there are court decisions that interpret the Copyright Act, but that’s not the same as a body of judge-made law, such as you have in other areas of the Common Law. HOST With the growth of Open Educational Resources, teachers are now paying greater attention to copyright and publisher’s licensing. However, many educators are unsure about how Canadian copyright occurs, what it includes and whether they need to register a copyrighted work. JIM SWANSON Copyright is an automatic right. But Once a work is fixed in some kind of tangible form, it’s subject to copyright. Fixation is what creates that. So, there’s no need to register. There is a way to register a copyright, but there’s no need to do it for the copyright to exist, to be legally enforceable. HOST Many people, including teachers, wonder whether you can copyright an idea – and so we asked - can the concept or idea behind a creation be copyrighted? JIM SWANSON Copyright does not protect ideas, and this is a difficult concept for people when they first start looking at copyright. ” Essentially it protects the way in which ideas are expressed and not the ideas themselves. The ideas themselves might be free. For example, the overused, you might say, plot for movies: boy meets girl, boy loses girl, boy gets girl back. That’s been done thousands of times in different ways. There’s no copyright in that idea. But obviously, as soon as you start giving the characters names and a location and dates and a more detailed storyline, it probably becomes subject to copyright if its original. Non-registered copyrights that I mentioned are protected but as a result, most works aren’t registered, and it should be kept in mind, that you can register; it’s very cheap to do it. It’s kind of filling in a form and submitting some money; about seventy dollars I think. And uh, all that does is give you a presumption of ownership that can’t be challenged, so typically you might register a copyright before you sue on it, but otherwise you might not bother. HOST At an individual level, copyright is an automatic right and does not require registration. But what does copyright protect, if not the idea? JIM SWANSON Well, it protects the original works. Works is a term in the Copyright Act and it is a pretty wide ranging list of things; some of which may not matter to a teacher but, you’d be surprised how quickly, for example, an architectural work can turn into a photograph, can turn into something in a textbook and it may be an issue. So a fairly complete list of the types of works that copyright protects include: architectural works, so the plans for a building and the building itself, artistic works such as paintings, sculpture. It can also include maps or charts and photographs, engravings. All sorts of things like that. Copyright also covers collective works such as magazines or dictionaries; things that have a number of authors contributing to them. Sometimes those are called compilations. Compilations are work resulting from the selection or arrangement of literary,dramatic, musical, or artistic works or parts of them. Or it can be works resulting from the selection or arrangement of data. So textbooks are often compilations. You may have a textbook with forty chapters and each of the chapters was written by a different author, and then an editor compiles those various chapters, selects and arranges them, puts them into a book and then maybe writes some forwards or other commentary, and that becomes a compilation. So a textbook often will have a lot more than one copyright in it. It’ll be a copyright in the overall compilation and there’ll be other copyrights in each of the individual works that are compiled into it. Copyright also covers dramatic works, which includes choreography and movies, but also plays and literary works: literature, compilations of literary works, novels, textbooks, screenplays. There’s a lot of overlap between these and sometimes the same term can cover two or three different things or vice versa. Copyright also covers music, including musical composition with words. So it would cover the lyrics. It would cover the sheet music. It would cover recordings. And it would cover live performances that were somehow or other recorded or reduced to tangible form. So all of those things are subject to copyright, including communication signals even, like streaming audio, or streaming video can be subject to copyright. And finally, copyright covers things like plates, such as things like negatives to photographs and what in the recording industry are called master recordings or master plates or master discs. So all of those things are subject to copyright. Soo, the owner of the copyright, who is normally the individual that first expresses the ideas in tangible form, typically it would be the author but there are some exceptions to that, copyright gives them exclusive rights, Basically copyright is the right to copy. That’s how it started, but there is more to it. HOST We asked Jim if there are any exceptions to the rules regarding copyright holders, such as moral rights. JIM SWANSON I’ve set out all the rights of copyright holders, which sound pretty broad. Butt there’s a number of ways in which those rights aren’t absolute. There’s some exceptions to them, and one of those is moral rights. So even when the copyright has been sold or transferred, the original author retains what are called “moral rights” to prevent treatment of the work in a manner that damages the reputation. So if you mutilate the work, or distort it, or your associate it with something undesirable, or you fail to provide attribution to the author (in other words, credit for their work) in the manner in which they want you to do that, then you could be infringing their moral rights and you can actually be sued for that. So if the author wants to be named under a stage name or wants to remain anonymous, you have to honour that request. Now, these moral rights can’t be transferred. They can’t be sold or left in a will or anything, but they can be waived. A famous case is the snow case with the Eaton Centre in Toronto, where sculptures of Canada geese, the copyrights were sold by the sculptor to the Eaton Centre or whoever was exhibiting them including the public exhibition rights. So now whoever holds that right can hang those geese and have them displayed in public. Moral rights weren’t waived, so when one Christmas red ribbons were tied around the necks of the geese that infringed the moral rights of the sculptor who actually sued and won. He felt that it distorted the work and made it look ridiculous and it affected his reputation and the court agreed with him. So moral rights are something that you have worry about equally as much as copyright. Even though they’re similar, they’re not quite the same thing. HOST From Copyright holder rights to moral rights we now come to user rights. Understanding user rights is important. Especially in the age of Open Educational Resources and Creative Commons Licensing. What rights do teachers and students have when it comes to copyrighted works? JIM SWANSON The big issue we need to deal with in terms of teachers using textbooks and other works subject to copyright is what are called Users rights, and in Canada they’re referred to as “Fair Dealing.” There’s a number of those rights that are reserved for the public. Because essentially copyright legislation and lots of types of intellectual property legislation is really a bargain between somebody creative and the rest of society. So we want to encourage people to write books and create works of art and program software. So to encourage that type of conduct which society believes is good; in exchange for them doing that we give them some economic rights and some exclusivity for a particular period of time that they can exploit to try to make money off their efforts. So the copyright holder has those rights to try and stop people from copying or publishing or publicly displaying and so on in order to be able to exclusively exploit those rights or to sell them to someone else for money. But the public has some rights as well. So it’s not an absolute right to the author or creator. The public has what are called rights to fair dealing and those are set out in the Copyright Act. So in terms of activities that you can perform that would otherwise infringe copyright - if you can fit within any of these activities and you’re doing it fairly, then you can have fair dealing which is essentially a defence to any claim that you’re infringing copyright. So the activities in Canada that are listed under Fair Dealing have been increased in the latest amendment to the Copyright Act and they include: purposes of research and private study, education (notably, that was added in 2012), parody and satire (which were also both added in 2012), criticism or review, but also news reporting, as long as you give the source (including if it’s in the source, the author, performer, or maker, or broadcaster of the work). Another new item under the Copyright Act is what we call “Non-commercial User-Generated Content”; sometimes referred to as the Youtube exception or exemption. Really what it is is allowing people to make what are often called mashups for non-commercial uses and then have those reproduced for non-commercial use. So a lot of Youtube videos for example might come under that even though they include portions of works that are subject to copyright. And finally, reproduction of a work for private purposes, as long as it’s a legally obtained copy and you haven’t circumvented any “technological protection measures” (you haven’t hacked into it) and you do this only for private use and you don’t give it away, some of that includes things like taping or recording tv shows to watch them later, we call that time-shifting, or recording your old long-play vinyl record to a cd for private enjoyment of a work that you legally paid for or obtained. So within certain limits you can do that nowadays. People were doing it anyway, now it’s permitted as part of Fair Dealing. HOST Keeping a teaching and learning context in mind, we asked Jim: What determines whether the work being considered for educational use falls under Fair Dealing? JIM SWANSON So the first question you ask yourself when you’re wanting to use a copyrighted work without paying for a license or permission is: “Do I fall under one of those activities?” and if you do that’s a good start but it’s not the end of the question. That means that you’ve got an allowable purpose but it doesn’t mean it’s necessarily allowed. If that makes sense. The dealing still MUST be Fair. So you look at the purpose for the dealing. So, for example, if you are doing research for commercial purposes that might not be as likely to be fair as if you’re doing it for charitable purposes. The character of the dealing is important to consider. So how are you dealing with the work? Is there, is there an established customer practice that people always do this? Do you destroy copies once you use them? Are you making a lot of copies and distributing them widely, which is much less likely to be fair than making a single copy that you don’t distribute. Also the amount of the dealing is something that you consider. Is it a small portion of the work? Like one paragraph out of a textbook? Or is it a copy of the whole book? The entire work? With a photo, an entire photo may be permissible but with book, and entire book probably is not. If its subject to copyright that probably will not be Fair Dealing. You also need to consider the alternatives to dealing with it. So is there a non-copyrighted work that could be available? Because that could be relevant: why are you infringing copyright if you’ve got an alternative. And the nature of the work. Is it publicly available? Is it published or unpublished? So if you take someone’s confidential work and start dealing with it, it’s probably not likely to be fair. But if it’s non-confidential and it’s published and it’s out there it’s more likely to be fair than if it’s something confidential that you’re basically ripping off. In fact, if it’s unpublished, but not confidential, then it might even be more likely to be fair because it will result in it being disseminated and having work disseminated to the public is one of the goals of copyright law because we allow people to make money by dissemination so we encourage them to do so. And then, the effect of the dealing on the work: if you’re competing with or substituting for the work that’s not likely to be fair. So for example, in a classroom, making thirty copies of a textbook that you can buy is not likely to be fair because you’re competing with the author’s sales of the textbook. Commercial considerations aren’t conclusive but their still relevant to consider. Although if you get into litigation, if a copyright owner wants to claim that this is some kind of detrimental effect on the market for the work, then the owner of the rights has to prove that. HOST So, if the tangible form or the work – is what is copyright what does it mean to infringe copyright? JIM SWANSON So if you carry out any activity that is reserved to the owner of the copyright that’s an infringement of the copyright and you can be sued for it. So, Infringement includes doing anything reserved to the owner without the consent of the owner. Consent obviously allows you to do things. But without consent, if you make copies that can be an infringement.If you translate the work into another language that can be infringement. If you convert it from one kind of work into another, such as converting a dramatic work into a novel. Or, you know, you may see a movie and come up with a novelization of it. Or you take a novel and turn it into a screenplay, make it into a movie. All of those are reserved to the owner of the copyright. As would be making a recording or video of a work. So for example if I take a bestselling novel and I record a video of me reading it out loud, I’m infringing the copyright of the novel, unless I obtain consent from the writer, or whoever owns the rights. Public performance or display of the work, that overlaps with what I just said with the video, but you can’t display a work of art, for example, in public without the consent of the copyright holder. The only exception to that under the Copyright Act is that the work is for sale. Either that or you need consent. You can’t reproduce or adapt or publicly present the work or communicate it to the public by telecommunication, such as by television. And you can’t rent out a computer program or a sound recording of a musical work without the consent of the copyright holder. So copyright is really a type of property, meaning it can be transferred, it can be sold, it can be left to a beneficiary in an estate. Copyright in Canada in general lasts for the life of the author, not the owner of the copyright but the author and the original creator of it, plus fifty years starting to run after December 31st in the year of the author’s death. And there is an exception to that, brought in in 2012, where pursuant to treaties Canada signed, the copyright in performances and sound recordings was extended from fifty years and is now seventy years from the release date. HOST With misunderstandings of creator and user rights, infringements may occur without the user knowing. We asked Jim: Is ignorance an excuse? JIM SWANSON Some of the excuses I hear as a lawyer for copyright infringement: one of the most common ones is “Well I didn’t know. I didn’t know it was subject to copyright.” Well the old saying that ignorance is no excuse is applicable here. That may go to how much they’re going to pay in the way of damages, but the fact that you didn’t know; it doesn’t matter. If you infringed, you infringed. Intent isn’t an element of it. Or another common answer is “Well it was just online. It was there.” That doesn’t mean that any rights have been waived. It means the work was published online. Doesn’t mean it’s free for taking, unless you can see some sort of statement on the website or the other online resources saying what you can do. Another one is “it was for internal use only. I was only going to use it in the classroom.” Well again, that only works if it fits within Fair Dealing. And saying “It wasn’t for profit.” That’s not an excuse either. It sometimes may make it more likely to be considered fair, but only if it fits under Fair Dealing. Another one I’ve seen a few times and I’ve seen this with textbooks that are trying to compile a number of works that have been out of print maybe for a while, for example, and “Well we asked the copyright owner but we never got an answer back.” Well, a copyright owner is not obligated to reply to any inquiry, and they’re not obligated to give you any permission. So silence is not permission. If you’re accused of infringement and you want to rely on Fair Dealing as a defense, you basically have to show that your actions fall under Fair Dealing. So would have to come within one of the activities as permitted and it would have to be fair. So many situations can be borderline so as a general rule the best course of action is to ask permission if you have any doubts. I don’t recommend general proceeding without permission and then later ask for forgiveness because forgiveness might not be given. HOST Jim left us with this take away message regarding copyright and fair dealing: JIM SWANSON So the takeaway message here is that avoiding copyright infringement means understanding that most works that a teacher might want to use are going to be subject to copyright. The question then becomes whether you need permission to use the work or whether you can fit under Fair Dealing. So if there’s any doubt about Fair Dealing and whether it covers a situation, then it’s best to get permission HOST We hope that this podcast has provided you with a deeper understanding of Canadian copyright, user rights and Fair Dealing. Special thanks to Jim Swanson for being a part of this podcast series. We hope you have enjoyed listening to this podcast and will take some time to explore other podcasts in this series taking a closer look at Open Educational Resources. This resource was funded by the Alberta Open Educational Resources Initiative, which is made possible through an investment from the Alberta government. In keeping with principals of Open Education, this podcast is available under an open license, CC-by-SA. The music "AM-Trans" and "Cash Rules" is licensed under a Creative Commons Attribution, Share-alike 4.0 International license. CLOSING MUSIC