The story of copyright is either explained through the lens of the user or the o
The story of copyright is either explained through the lens of the user or the owner. At an academic institution, such as a University or College, an instructor can as quickly become users as they would be owners of copyright. In research for example, faculty can use third party copyright works such as scientific databases, or questionnaires in conducting their research project, and in turn write an article for an academic journal based on that same project. In the former the instructor is the user of copyright and in the latter the author and owner of the copyright. When the instructor uses copyright works that they have created, they generally own those works, unless specific exceptions apply. That means that the instructor owner has certain exclusive rights to their works, as provided to them in the Copyright Act, R.S., c. C-30, s. 1. For example, for literary works, the Copyright Act, provides and owner the sole right to produce or reproduce the work or any substantial part of the work in any form, to perform the work in public or, if the work is unpublished, to publish the work or any substantial part of it. It also grants the owner the right to authorize anyone to any of the foregoing.
As previously mentioned an instructor is not always just an author/owner of copyright work, and in order to provide instruction to their students, instructors often seek the assistance from third party copyright works. That is to say, generally speaking if an instructor wishes to use third party copyright works they would need to seek their permission to do so, unless the instructor falls under one of the statutory exceptions, which would grant an instructor the ability to use a third party’s copyright works without permission and still be in compliance with copyright law. These exceptions are listed below.
Copyright Act Exceptions
Fair Dealing
Fair dealing is a statutory exception that would permit an instructor to use third party content without first seeking permission from or making payment to the copyright holder, so long as a two prong test is met. First the instructor must be using the copyright works for either, research, private study, criticism or review, parody, satire, new reporting or education. For the most part, it can generally be easy for an instructor to fall under one of the purposes. However the second part of the test, can and is, a little more complicated. Once an instructor knows that they are using third party copyright works for one of the fair dealing purposes, they then have to meet the second part of the test – that dealing is fair. Although what is “fair” is not defined in the Copyright Act and is a question of fact, there has been Supreme Court of Canada cases that have provided insight to the question of fairness. Most notably, the the Supreme Court of Canada, in CCH Canadian Ltd v. Law Society of Upper Canada, [2004] 1 SCR 339, 2004 SCC 13, provided a six factor analysis that can be used in determining the fairness of the deali