Professor Myra J. Tawfik, CIGI Senior Fellow, Professor of Law and Academic Director of the Law, Technology and Entrepreneurship Clinic at the University of Windsor to discuss basic principles of copyright law

1. A Researcher’s Guide to Copyright
Law Myra J. Tawfik
CIGI Senior Fellow and
Professor of Law University
of Windsor
1
License: CC0 Public Domain / FAQ Free
for commercial use / No attribution
required
Disclaimer: For informational
purposes only. Nothing in this
presentation is intended as legal
advice or the provision of legal
services.

2. Copyright Law in Canada
Governed exclusively by the terms of the
Copyright Act
BUT Canada belongs to a number of
international treaties (ex: Berne
Convention, WTO/TRIPs) that establish
minimum standards that we must adhere to
Countries are free to enact higher standards
so the law may differ from country to
country

3. Canadian Copyright Law
The Act recognizes copyright protection as well
as moral rights protection
Moral Rights in a nutshell:
Creators enjoy the right to the integrity of their
works (to prevent mutilation or distortion of the
work to the prejudice of his or her reputation) and
the right of attribution (to be named as creator
including under a pseudonym or to remain
anonymous)

4. Basic Principles of Copyright
Protection
Copyright arises automatically
upon creation of the work –
Copyright only protects works
that are fixed in some material
form

5. Basic Principles of Copyright
Protection
Copyright protects the expression
of an idea, not the idea itself
Copyright protects original
a)Literary
b)Artistic
c) Musical
d) Dramatic works -

6. The Test for ‘Originality’
A work will be original if sufficient
skill and judgment are employed in its
creation.
Effort, labour, ‘sweat of brow’,
‘industrious collection’ alone will not
be enough to obtain copyright
protection
(CCH v. Law Society of Upper Canada SCC 2004)

7. Generally speaking, facts are NOT
protected at all BUT
Compilations of facts can be protected
if the selection and arrangement of
those facts are sufficiently ‘original’ to
meet the legal test
Only the particular selection and
arrangement would be protected, not
the facts themselves.
Grey area: databases

8. Duration of Copyright
Life of the author + 50 years after the
author’s death – even if copyright is
assigned to 3rd party, term is
dependent on the life of the actual
author
A number of other countries have
moved to life + 70 years or even life +
100 years (Mexico)
Pressure on Canada to move to life +
70 (ex: TPP)

9. Entitlement to Protection
Author/Joint-Author
Assignee and licensee
Provincial and Federal Crowns (ie
Government publications)
Employer for works done in the
course of employment – unless
agreement to the contrary

10. “Agreement to the Contrary”: Wilfrid
Laurier Collective Agreements (FT
and PT Faculty)
“The copyright on all literary works,
dramatic works, musical works, artistic
works, computer programs, or other forms
of intellectual property produced or created
by Members is vested in the Members who
created the works. The benefits that may
accrue to Members may be limited by the
terms of external contracts and licencing
agreements.”

11. Copyright Infringement
Section 3 of the Act gives the
author (copyright holder) the sole
right to do any or all of the actions
enumerated therein including the
sole right to authorize a 3rd party to
do any or all of the enumerated
actions

12. This Includes:
The sole right to reproduce the work or any
substantial part of the work in any material form
(multiply copies) – or give permission..
The sole right to perform the work or any
substantial part thereof in public – or give
permission…
The sole right to publish the work – or give
permission…
The sole right to translate the work – or give
permission
The sole right to communicate the work to the
public by telecommunication (covers online
activity/digital copyright) – or give permission…

13. Prohibition on Circumvention of
Digital Locks
The prohibition applies regardless of the
reason for the circumvention – even though
the Act allows for permitted uses of
copyright works without permission, if the
work is locked, it doesn’t matter whether
you circumvent to exercise a permitted use
or not.

14. Always Allowed
Reproducing works in public domain (no
copyright or copyright has expired) – but
watch for sneaky contractual restrictions
Quoting short passages from another work
with attribution
Reproducing a ‘non-substantial’ part of the
work
In general, linking to a website (except for
deep linking or if link refers back to
defamatory or infringing material) but note
terms of use on website for any restrictions

15. Permitted Uses of Copyright
Works:
Fair Dealing s. 29
Fair Dealing is not equivalent to Fair Use
The Fair Dealing provisions identify
specific categories of permissible uses
Assuming your use fits within a specified
category, that use must still be ‘fair’

16. Fair Dealing
S. 29: Fair dealing for the purpose of
research, private study, education, parody
or satire does not infringe copyright
S. 29.1: Fair dealing for the purpose of
criticism or review does not infringe
copyright. Requires attribution (source
and name of author)
S. 29.2: Fair dealing for the purpose of
news reporting does not infringe
copyright. Requires attribution (source
and name of author)

17. The Supreme Court of Canada on Fair
Dealing
“…The fair dealing exception…is a
user's right. In order to maintain the
proper balance between the rights of a
copyright owner and users' interests, it
must not be interpreted restrictively.”
CCH v. Law Society of Upper Canada
(2004)

18. Factors to be Considered
(1) the purpose of the dealing;
(2) the character of the dealing;
(3) the amount of the dealing;
(4) alternatives to the dealing;
(5) the nature of the work; and
(6) the effect of the dealing on the work

19. Invoking Fair Dealing
Always a question of judgment – there are no hard
and fast rules – bottom line: can’t unduly harm the
market for the original work
Does your use fit within one or more of the
enumerated categories (broadly construed such that
streaming previews of musical works = fair dealing
for research)?
AND is your use ‘fair’ under the 6 part analysis set
out in CCH?
General Tip: Consult the AUCC Fair Dealing
Guidelines, adopted by most Universities including
Wilfrid Laurier

20. Specific Exceptions for Personal, Non-
Commercial Use:
User Generated Content
“You Tube Exception” allows you to
reproduce published copyright content and
use it in a new work without permission
New work must be used solely for non-
commercial purposes, source must be
attributed and you must be reasonably
certain that the content you have copied is
not infringing. New work must not
significantly adversely affect the original.

21. Specific Exceptions for Individual,
Non-Commercial Use:
Reproduction for Private Purposes –
Space Shifting (s. 29.22)
Reproduction for Later Listening or
Viewing – Time Shifting (S. 29.23)
But not where there are digital locks
in place
21

22. 22
Permitted Uses and Exceptions for
Educational Institutions, Libraries,
Archives
General Exception: Fair Dealing
Special Exceptions: Educational Institutions,
Libraries, Archives and Museums:
Some exceptions require that the institution
have a reprographic and/or digital license with
a collecting society (ex: Access Copyright)
New rules for online courses and material
available through the Internet–

23. Work Available over the Internet
An educational institution or person acting
under its authority can:
Reproduce it, communicate it to students online,
perform it to students with attribution UNLESS
Website is protected by a digital lock or website
clearly states that copying etc is prohibited
General Tip: Always check copyright notices
on websites to see what you can and can’t do
with the content of the website

24. Copyright Licenses and Other
Applicable Agreements and Policies
Access Copyright License – Wilfrid Laurier
license applies to hard copies and digital copies –
covers uses falling outside of fair dealing
Contractual terms of use for online journals
Wilfrid Laurier Fair Dealing Guidelines (AUCC
Guidelines)
Wilfrid Laurier Ownership of Student-Created IP
Policy

25. What Can I Do in the Classroom?
Educators and educational institutions
benefit from:
Fair dealing
NB: SCC - teacher making copies of excerpts
of recommended readings for the entire class
= fair dealing for private study and research
Education Exceptions
Access Copyright License (where
applicable)

26. What can I do in my Online Course?
Educators and educational institutions benefit
from:
Fair dealing
Education Exceptions – specific rules where
course is “communicated to the public by
telecommunication”
Access Copyright License (where applicable)
Terms of use of online journal, ebook and other
online materials
BUT – digital locks trump

27. Open Access and New Tri-Council
Policy
Grant recipients must ensure that all peer-reviewed journal
publications arising out of the grant be made freely
accessible within 12 months of publication
Accessibility:
Scholars Commons @ Laurier – institutional repository
and/or
Publishing in an open access journal
BUT much depends on the terms and conditions of the
individual publisher –Requires that you publish in journals
where author retains copyright OR where journal expressly
allows deposit in institutional repository

28. Open Access and Creative Commons
Similar objectives:
CC= copyright holder decides
how her published work is to be
used by others – regardless of
what the work is or how it is
published or disseminated
OA= copyright holder agrees to
permit free access to her
scholarly journal publications
Least restrictive CC licence
CC-BY

29. Final Tips and Suggestions
As users: Use works that are in the public domain:
No copyright in the first place (ex: facts) or
copyright has expired
If the work is not in the public domain and is
available online, use open access material or
material issued under a Creative Commons license
but always check on the particular terms of the
license
Remember that Terms of Use agreements can
trump fair dealing or other permitted uses as can
digital locks

30. Final Tips and Suggestions
As authors: Consider issuing all of your work
under Creative Commons licenses and publishing
exclusively in Open Access scholarly journals
Negotiate with publishers who require an
assignment of your copyright to allow you to
deposit your publications in your institutional
repository, post your work on SSRN or your
website etc
• Thank you!