Disclaimer: All of this content is part of a graduate project and designed to be an introduction to the basics of copyright and fair dealing. While compiling the information for the FAQ, a number of differences were found across universities in Canada due to different licensing agreements or different policies in place. Questions on how copyright impacts your instruction can best be addressed by your institution, the institution’s copyright office, or a lawyer. This post used to be a static page, first posted in Winter 2016.
Common Words & Terms
Fair Dealing (and Fair Use)
1. Intellectual Property
The Canadian Intellectual Property Office defined intellectual property (IP) as “a creation of the mind. IP includes inventions, literary and artistic works, designs and symbols, and names and images used in business.” One of the ways IP is protected by law is through the Copyright Act.
Copyright is the term used to describe the legal rights and protection that creators have over their works. These works include literary and artistic works such as: books, articles, music, paintings, sculpture, films, computer programs, databases, advertisements, maps, and technical drawings. While the copyright originally belongs to the creator, there are various aspects to this right and some of them can be given or sold to a different person or corporate body. It should be noted that an idea cannot be copyrighted, only an original creation.
While not covered here, copyright should not be confused with trademark, patents, or industrial designs. For more information on each of these options, visit the Canadian Intellectual Property Office website listed below.
A license is an agreement between the copyright owner and someone else who is authorized to use the content. This partnership is usually formed in exchange for an agreed payment and is limited to certain purposes and conditions. A variety of licensing agreements are available, such as a creative commons license.
Fair dealing is part of the Copyright Act that protects users’ rights to copyrighted works without permission or payment. There are fair dealing exceptions as well as a two-step test. According to the Copyright Act, the fair dealing exceptions include use for the purpose of: research, private study, education, parody, satire, criticism, review, or news reporting. The two step-test accounts for 1) the purpose of the use and 2) the fairness of use. (These two steps are summarized under How much of this resource can I copy? and Murray & Trosow 2013 listed below offers a more complete discussion.) This aspect of Canadian law is not explicitly defined, but the two-step process and legal precedent help guide fair dealing.
Some scholars voice Canada’s shift from fair dealing to fair use (see Geist 2013, Murray & Trosow 2013), but the legal term in Canadian law is currently fair dealing. The similar, but distinct concept in American copyright law is called fair use.
Murray, Laura J., and Samuel E. Trosow. 2013. Canadian Copyright: A citizen’s guide. 2nd ed. Toronto: Between the Lines. See esp. chapter 5 “Users’ Rights.”
Infringement occurs when someone is in breach or violation of copyright law. Infringement can be direct or indirect. Direct infringement is when someone uses the work without permission in a way that only the copyright owner is entitled, such as making a copy that does not fall under an exception and is not considered fair dealing. Indirect infringement is when someone distributes copies or performs the work without legal authority, such as selling copies of copyright-protected work.
Creative Commons is a non-profit organization that supports sharing information by providing various licenses that are accessible, easy-to-understand, and standardized. Creative commons licenses are not an alternative to copyright; rather, creative commons works with existing copyright laws by providing free options for creators to determine how their works can be used. There are six options available that give creators a range of options to choose what rights they would like reserved and what they would like to share in the pursuit of universal access to information.
Public domain works are those previously protected by copyright which have now had the copyright expire or expressly waived. These works do not require permission or payment when used. Perhaps the most well recognized example of public domain content is the work of William Shakespeare. The copyright expired long ago allowing performances, readings, and reprints without permission required. Of course, there are published versions with additional original content, such as illustrations, that are copyright protected.
Open Access is the movement to promote immediate, online, access to freely available research. Open access affords the right to use and re-use the information. This movement is particularly significant to the academic community as a way for researchers to share information more effectively and maximize visibility. There are two types of open access: green and gold.
While open access may not directly relate to the discussion of image use, it is important to distinguish this from creative commons licences and public domain works. For a longer description and more information on how the open access movement is important to academic publishing, visit the Institutional Repository Info Page.