A Brief Overview of Copyright: 5 key concepts
Copyright issues underlie a lot of university activities, both for creators and users of copyright-protected material. In Canada, copyright is governed by the Copyright Act, which is as long and dry as you might expect. This overview will introduce you to copyright through five key concepts: Work, Ownership, Infringement, Exceptions, and Balance.
1. Work. Copyright applies to any “original literary, dramatic, musical and artistic work” (s.5(1) of the Act), subject to certain conditions. Copyright protects the original expression of an idea rather than the idea itself. There is no copyright in the underlying facts, but there can be copyright protection for the description, expression, or representation of those facts.
2. Ownership. In general, the author or creator of a work is the initial owner of the copyright (s.13(1)), and copyright exists immediately upon the creation of the work. In cases of joint authorship, ownership is shared among the authors. If you are the owner of the copyright in a work, then there are certain things that no one else can do with that work, unless you explicitly permit it. These include printing, reproducing, publishing, communicating, performing, or transmitting the work or any substantial portion of the work (subject to certain exceptions). The owner(s) of a copyright may assign or license their rights, in whole or in part, via a written agreement (s.13(4)). The original author of a work also has “moral rights” in the work, which include the right to the integrity of the work and to be associated with the work (s.14.1(1)) These will be further discussed in a separate entry on this site (coming soon).
Ownership becomes more complicated when it involves works created “in the course of employment”(s.13(3)). In these cases, the applicable employment agreement will govern ownership. Unless there is specific agreement to the contrary, the employer owns the copyrights in works created by an employee in the course of employment. At the University of Alberta, all AASUA collective agreements include copyright provisions to address ownership of works created in the course of employment. The Copyright MOA is available here.
3. Infringement. If you are not the copyright owner of a given work and you do something with that work without the owner’s permission that normally only the owner can do under the Act, then you are infringing that owner’s copyright (s.27(1)). However, copyright infringement is not always black and white. There are a number of circumstances, particularly involving “exceptions”, where much remains open to interpretation.
4. Exceptions. The Copyright Act lays out the rights of owners, but it also outlines “user rights” through explicit exceptions. A number of these explicit exceptions to copyright infringement pertain to “educational institutions” (s.29.4) as well as to “libraries, archives and museums in educational institutions” (s.30.4). There is also a specific exception that relates to works available on the internet (s.30.04). However, “fair dealing” may be the most important source of user rights (s.29).
Fair dealing applies when the use of a work falls within a range of specific purposes, including “private study”, “research” and “education”, and where certain other factors are satisfied. If your use of someone else’s copyright-protected work is considered fair dealing, then that use does NOT infringe copyright and the owner’s permission is not required. However, whether or not a use is fair dealing is a matter of interpretation. A number of Supreme Court of Canada decisions have provided guidance on determining what counts as fair dealing, but these decisions have also made clear that determining the fairness of dealings with copyright-protected material is best done on a case-by-case basis. More specifics about fair dealing will be available shortly.
5. Balance. There are two competing sets of rights that copyright law strives to keep in balance. The Copyright Act defines the rights of creators and owners, but it also outlines the exceptions that form the basis for the rights of users. This balance weighs the public interest in appropriately protecting the economic rights of creators with the public interest in allowing some limited use of copyright-protected works by users. Maintaining this balance is central to interpretation in copyright law (Théberge v. Galerie d’Art du Petit Champlain inc.,  2 S.C.R. 336, para. 30).
Familiarity with these five key concepts should help both creators and users of copyright-protected materials to think more clearly about their respective rights. Copyright statutes have been put in place to serve the public interest, and that interest is best served when users understand and respect the reasonable rights of creators and when creators understand and respect the reasonable rights of users.
[A version of this first appeared on 28 Nov 2016 as a blog post on The Quad]