1. Canadian Copyright Law: Current Issues for Librarians Canadian Health Libraries Association/ Association des bibliothèques de la santé du Canada May 27, 2008 Dr. Teresa Scassa

2. May 27, 20082 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

3. May 27, 20083 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

4. May 27, 20084 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)

5. May 27, 20085 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

6. May 27, 20086 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

7. May 27, 20087 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)

8. May 27, 20088 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

9. May 27, 20089 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

10. May 27, 200810 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

11. May 27, 200811 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

12. May 27, 200812 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”

13. May 27, 200813 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”

14. May 27, 200814 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

15. May 27, 200815 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

16. May 27, 200816 “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

17. May 27, 200817 Other exceptions the Copyright Act Sections 30.1-30.4 deal specifically with uses by libraries of copyright protected works

18. May 27, 200818 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

19. May 27, 200819 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

20. May 27, 200820 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

21. May 27, 200821 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

22. May 27, 200822 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)

23. May 27, 200823 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.

24. May 27, 200824 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)

25. May 27, 200825 Wording of notice The wording of the notice is prescribed by regulations (SOR/99-325) and must contain at least the following:

26. May 27, 200826 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.”

27. May 27, 200827 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

28. May 27, 200828 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)

29. May 27, 200829 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

30. May 27, 200830 Fair Dealing Best Practices Policy of Great Library of Law Society of Upper Canada: http://rc.lsuc.on.ca/library/services_access.ht m http://rc.lsuc.on.ca/library/services_access.ht m Concordia University: http://web2.concordia.ca/Legal_Counsel/polic ies/english/SG/SG-2.html http://web2.concordia.ca/Legal_Counsel/polic ies/english/SG/SG-2.html

31. May 27, 200831 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

32. May 27, 200832 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.htmlhttp://www.cb- cda.gc.ca/societies/index-e.html

33. May 27, 200833 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

34. May 27, 200834 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

35. May 27, 200835 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

36. May 27, 200836 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

37. May 27, 200837 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

38. May 27, 200838 Remedies for infringement Damages and or profits which flow from the infringement Injunction Delivery up of infringing works Statutory damages

39. May 27, 200839 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

40. May 27, 200840 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

41. May 27, 200841 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

42. May 27, 200842 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

43. May 27, 200843 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

44. May 27, 200844 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

45. May 27, 200845 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) http://www.earlham.edu/~peters/fos/overview.htm

46. May 27, 200846 Creative Commons Licence Creative Commons is now an international movement Canadian branch is Creative Commons Canada http://creativecommons.ca/http://creativecommons.ca/ Creative Commons licence provides accessible, upfront terms of use, reproduction etc.

47. May 27, 200847 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 http://www.creativecommons.ca/blog/wp- content/uploads/2008/04/pdregistryca- pd_flowchart.pdf

48. May 27, 200848 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

49. May 27, 200849 Thank You!