Copyright and On-line Courses: Some General Guidelines

by Prof. Myra Tawfik and Nisarg Munshi

We are increasingly using the web either as the primary method of course delivery or as a course supplement. It’s important to keep in mind that what is permissible with respect to the duplication of copyrighted material within the confines of the classroom may not necessarily be permissible when migrating a course to an on-line environment. Therefore, it is critical that we think about copyright issues whenever we incorporate material that isn’t our own into on-line courses.

Copyright holders enjoy certain exclusive rights over their works, including the right to multiply copies of the work as well as the right to communicate the work to the public by telecommunication. Anyone who, without permission, performs any of the acts that belong to the copyright holder is liable under the law. That said, these rights are not unlimited and so, there are certain things that can be done with copyright works without prior permission. This is especially true within the educational context.

Here are some basic tips about what to consider in determining whether to use material that isn’t your own. Please note that these are not official University of Windsor policy, but rather unofficial interpretations of incomplete and largely untested legislation.

Public Domain

If possible, use works in which copyright has expired. Generally, copyright in Canada lasts during the lifetime of the author plus 50 years after the author’s death, after which the works enter the public domain.

Non-Substantial Copying

Copyright protects the author against reproduction of a substantial part of the work. Copying a minimal amount, so long as it isn’t the ‘essence’ of the copyright work, is permissible. It’s a qualitative rather than a quantitative test so it’s a question of judgment in each case. Furthermore, such things as elements that are commonplace or standard within a particular discipline may constitute a non-substantial part of a work. Much depends on the context.

Fair Dealing

More substantial portions of copyright works can be reproduced without permission for fair dealing purposes. Quoting passages from another source (so long as it is properly attributed) is considered fair if it does not diminish the legitimate expectation of economic return of the author. This usually means it will only be a percentage of the larger work or piece, (albeit a lot more than would be covered by the non-substantial copying rule above), but it would also be fair dealing if it falls under one or more the following enumerated categories: private study, research, criticism or news reporting.

Unfortunately, there are no black and white answers to whether a use constitutes fair dealing, especially in relation to the web. For example: it is often the case that reproducing a work such as a photograph, a poem or a song is not fair dealing, because this is the entire work, not just a portion of it. However, if copying the entire work is necessary for the purpose of critique, it might be ok – whether in the real world or in the virtual world.

The CIPPIC web site is www.cippic.ca.
CAUT resources on copyright are here.
E-mail IPLIN at iplin@uwindsor.ca.

If you don’t want to risk uncertainty, then use only materials that are clearly freely available or in respect of which permission has been granted.  That said, fair dealing is one of the most important user rights that teachers and students have. What is needed in order to give us some measure of comfort in exercising our fair dealing rights is a set of best policies and practices for this campus. Until such time, if you think that a use constitutes fair dealing especially in an on-line context, do your research. A good place to start is the Canadian Internet Policy and Public Interest Clinic (CIPPIC) or the Intellectual Property Legal Information Network (IPLIN). Further, The Canadian Association of University Teachers (CAUT) is presently working on developing a best practices model for universities and colleges.

Works Issued Under a Creative Commons Licence

These are quickly becoming the easiest and most effective way for authors to let others know how they want their works to be used. Often, these works are freely available for non-commercial purposes, and there is a search engine that will allow you to find material under such a licence. See http://search.creativecommons.org. We would also urge you to consider publishing your own work, wherever possible, under a Creative Commons licence to facilitate others accessing and using your works. For further info see www.creativecommons.ca.

Works Covered by a Licence entered into with a Collecting Society

Tip: If what you are using is available publicly on-line, it is always useful to check the ‘copyright notice’ on the website. The copyright holder may already give you permission for educational use and this will usually be indicated in the website itself.

There is, as yet, no blanket licence covering digital use of copyright works where those uses don’t fall within fair dealing or other exceptions. The Access Canada Copyright agreement the University holds does not cover digital transmissions. Therefore, if you can’t fit within any of the situations set out above, you must seek prior permission from the copyright holder.

So, beyond understanding these five important considerations, here are some further good copyright practices to follow:

• Always attribute the work you are reproducing, i.e. name the author and the source of the material reproduced.
  
  
• Passwords don’t necessarily shield you from liability. However, password-protection along with sound University policies and practices would be taken into account in the determination of whether a given use was a fair dealing, and is often an important consideration when you do have to go seek permission from a publisher for use of copyrighted work, especially from magazines and newspapers.
  
  
• Although tempting, possibly even laudable if your intent is to try to help students save some money, providing electronic versions of your course materials on your website, unless you are the copyright holder, is not a good idea. Similarly, placing media presentations (i.e. Powerpoints) that contain copyrighted material in the form of images or charts scanned from textbooks could be problematic - the PowerPoint itself may be yours, but such visual bits of content (bits that would be allowed in the classroom) may not be.
  
  
• Providing a link to another website is permissible. The only exception is if you are ‘deep linking’ i.e. where your website automatically calls up the 3rd party website, making it appear inside your course website that is on a University of Windsor server. As long as all you’re doing is providing a link that requires users to click on it to get to the other website, and it opens in a new page in the browser, this is ok. Also make sure that the link takes users to the 3rd party’s homepage rather than to secondary pages just to be on the safe side.
  
  
• When in doubt, just ask. Copyright law should not serve to chill legitimate use of copyright works for educational purposes, but the copyright holder does have legitimate interests that need to be respected. It is always prudent to do "due diligence", to double check that what you are intending to do falls within the law.
  
  There are a number of resources available on campus as well as on the web to help you make informed decisions. Within the University you can ask the staff at Centre for Flexible Learning, the Office of Research Services, the University Counsel’s office or the Windsor University Faculty Association.  You can also ask a librarian at Leddy or the Law Library or ask a law student through the Intellectual Property Legal Information Network, which is set up for just this purpose, thanks to funding from the Law Foundation of Ontario.
  
  

• Myra Tawfik is a professor in the Faculty of Law at the University of Windsor, and a regular contributor to the e-Law series.
  
  Nisarg Munshi is a third year Law student, and an intern with the Intellectual Property Legal Information Network (IPLIN).