Fair Dealing in Practice

The notes below are intended to clarify the application of the University of Windsor Fair Dealing Policy to copying in a variety of different contexts.

1. Copying for Teaching

2. Copying for Research

3. Copying for Posting in a Learning Management System (Blackboard Learn)

4. Musical Works and Sound Recordings

5. Audiovisual Works

6. Administrative Copying


1. Copying for Teaching

Under the Fair Dealing Policy of the University of Windsor, faculty and staff may make a copy of a Short Excerpt for the purpose of teaching students, subject to the safeguards discussed below. In particular, faculty members teaching a course at the university may;

  • hand out a hard copy of the Short Excerpt to their students;

  • email a copy of the Short Excerpt to their students;

  • post a copy of the Short Excerpt to an LMS

  • include a copy of the Short Excerpt in a lecture or classroom presentation such as a PowerPoint presentation presented to their students; and

  • display a copy of the Short Excerpt in a classroom, to their students.

In each case, a copy of the Short Excerpt may also be provided or made available as required to another faculty or staff member involved in the course.

Please Note: Special circumstances relating to the copying and performance of audiovisual works (e.g. YouTube videos) and musical works are set out respectively here: Audiovisual Works and Musical Works and Sound Recordings.

Safeguards

The university or a faculty member must be in lawful possession of the work from which the copy of the Short Excerpt is being made. Being in lawful possession includes where

  • the work is in the collection of the university library or a faculty member,

  • the work is borrowed by the university library or faculty member through an interlibrary loan, and

  • the university or a faculty member has a copy of the Work, or a portion of the Work, pursuant to fair dealing or as otherwise permitted pursuant to the Copyright Act.

The University of Windsor Fair Dealing Policy does not permit copying or communicating a Work for a lecture or a presentation that is open to the general public, i.e. a lecture or presentation that is not restricted to students specifically enrolled in a course of study at the University to Windsor.

Depending on the circumstances, the fair dealing exception may apply where the lecture or presentation is open to the public, but a separate fair dealing analysis is required to make that determination. For information and assistance email copyright@uwindsor.ca

Effect of a License

Some electronic versions of Works can only be accessed because the university has entered into a license agreement. Some license agreements limit how the electronic version of the Works may be copied, distributed or performed by the university (including by its faculty and staff). Some licenses also require end users to agree to such limitations.

These contractual limitations apply as a separate limitation from the fair dealing exception. Therefore, the Fair Dealing Policy in force at the university may allow a certain act of copying, but if an applicable license prohibits that act, the license must be complied with if you wish to use that licensed version of the Work.

Relationship between Fair Dealing and the Exceptions for Displaying a Work and a Lesson

Below are explanations of two additional user rights set out in the Copyright Act (called, respectively, the Display exception and the Lesson exception). These are separate and distinct from the fair dealing exception.

In any given instance, both the fair dealing exception and one of these other exceptions may apply. In such an instance, a faculty member may choose which ever is more practical or otherwise preferable — the fair dealing exception or one of the Display or Lesson exceptions.

If the use of a particular Work falls outside what is permitted by the Fair Dealing Policy, a faculty member may wish to consider whether the fair dealing exception otherwise applies, or whether the Display or Lesson exceptions are more appropriate. Please note that both the Display and the Lesson exceptions contain restrictions that must be complied with. If you have any questions or concerns about either exception, please contact copyright@uwindsor.ca

The Display Exception

Pursuant to section 29.4(1) of the Copyright Act, it is not an infringement of copyright to reproduce a Work, or do any other necessary act, in order to display the work on the premises of a university for the purpose of education or training.

This exception permits the display of more than a Short Excerpt.

Restrictions: The exception does not apply if the work is available for sale in Canada within a reasonable time, at a reasonable price, in a medium appropriate for the display, and the copies may be located with reasonable effort. However, this does not prevent a faculty member making of a manual reproduction of the Work (e.g. on a white board).

The Lesson Exception

Section 30.01 of Copyright Act the provides an exception for copies included in a lesson. A lesson would include a lecture, and a presentation, such as a PowerPoint presentation, presented in a classroom.

For the exception in section 30.01 to apply, recordings or reproductions of the lesson must be destroyed within 30 days after the day on which the students enrolled in the course of which the lesson forms part have received their final course evaluation. This would mean that all copies of a presentation stored in Blackboard Learn must be destroyed, and not merely rendered inaccessible to students, within the 30 day period.

The following activities are permissible under section 30.01:

  • If a presentation made in class contains a work displayed pursuant to the Display exception (described above), that presentation may be posted to Blackboard Learn.

  • If a recording of a lecture or classroom presentation contains a work displayed pursuant to the Display exception, that recording may be posted to Blackboard Learn.

  • If a recording of a lecture or classroom presentation contains the performance of an audiovisual work or sound recording, that recording may be posted to Blackboard Learn. However, the audiovisual work and the sound recording must not be an infringing copy or the person responsible for the performance had no reasonable grounds to believe that the audiovisual work or sound recording was an infringing copy.

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2. Copying for Research

Under the Fair Dealing Policy, UofW faculty may make a copy of a Short Excerpt in conducting research on a specific topic of enquiry or for inclusion in a personal collection of research resources, subject to the safeguard discussed below.

The faculty member may share a copy of the Short Excerpt with faculty and students both within the UofW and within another university with whom the faculty member is engaged in collaborative research on that specific topic of inquiry.

In sharing a copy of the Short Excerpt, the faculty member may email the copy to the students and other faculty members engaged on that specific topic of inquiry, or post the copy to an LMS used in the performance or administration of such research.

Safeguard

As set out in the Fair Dealing Policy, copying multiple Short Excerpts from the same Work with the intention or the effect of copying substantially the entire Work is prohibited.

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3. Copying for Posting in a Learning Management System (Blackboard Learn)

Under the Fair Dealing Policy, UofW faculty and staff may post or upload a Short Excerpt to Blackboard Learn, subject to the safeguards discussed below. Blackboard Learn may deliver a Short Excerpt stored in its system, or it may deliver such an excerpt from a separate electronic reserve system.

Note, additional guidance for the posting of Short Excerpts of audiovisual works, musical works and sound recordings is set out respectively here: Audiovisual Works and Musical Works and Sound Recordings.

Safeguards

The following safeguards must be practiced.

  • The Fair Dealing Policy only permits posting Short Excerpts to an LMS under the control of the University of Windsor. It does not apply to the posting of Short Excerpts to a wiki or a blog.

  • The LMS must be stored on a secure server or other device (e.g. password protected

  • Only persons with whom the Short Excerpt can be shared in keeping with the fair dealing purpose should have access, for example

    • For Short Excerpts copied for a course, unit or program of instruction, access should be restricted to the students who are enrolled and co-teachers and other faculty and staff members providing assistance on the course;

    • For Short Excerpts copied for a research project, access should be restricted to those faculty, staff and students participating in that research project, and other faculty and staff members providing assistance.

    • Incidental access to Blackboard Learn generally, by faculty staff and contractors, for the purpose of operating and administrating Blackboard Learn does not violate this safeguard.

  • If content is uploaded or posted to Blackboard Learn in a centralized process involving university administrative staff, those staff should review the content to ensure it is posted in accordance with the Fair Dealing Policy or that the posting of the copies does not infringe copyright for other reasons.

  • If content is uploaded or posted to Blackboard Learn by faculty members or their staff, it should be identified in Blackboard Learn the reason that they are entitled to post each work or excerpt (i.e. "copyright status" - permission obtained; own copyright; public domain; licensed content; fair dealing or other exception (specify) or Other (specify)). For certain content posted to Blackboard Learn (e.g. classroom presentations containing excerpts from a number of works) multiple reasons may apply and each reason should be noted.

  • Where the functionality of Blackboard Learn doesn't make the identification of the copyright status practical, Blackboard Learn should contain notices and information about the obligations of faculty and staff to comply with copyright and measures should be taken to ensure content posted to Blackboard Learn doesn't infringe copyright (for example: conduct periodic reviews of random selections of content).

  • Faculty members or their staff who post content prepared by a student on Blackboard Learn should confirm that the content doesn't include copies of Works that infringe copyright.

Including excerpts longer than a Short Excerpt on Blackboard Learn

If an excerpt to be included in Blackboard Learn exceeds a Short Excerpt, it may be possible to post the copy using other means, which include:

  • Posting the copy as permitted by the terms of a digital subscription. To look up permitted uses for particular materials, go to the Leddy Library License Information webpage. Please note, if an applicable license prohibits the use of excerpts in Blackboard Learn, the license must be followed with respect to the digital copy of the Work.

  • Posting the copy pursuant to another exception in the Copyright Act Obtaining transactional permission from the copyright holder or the holder's licensing agent. Where a transactional permission is used, the permission or a record of the permission should be retained in paper or electronic form.

If you have any questions or concerns about using any of the above means to post materials in Blackboard Learn. Please contact copyright@uwindsor.ca.

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4. Musical Works and Sound Recordings

Introduction to Copyright in Musical Works

A musical work typically takes the form of sheet music showing the musical score. Musical works are usually available individually or in a collection containing several musical scores.

Copyright subsists in every musical work, whether published or unpublished - the Fair Dealing Policy applies to both.

Musical works include both musical composition and lyrics. A composer and lyricist may own copyright in their separate contributions to a musical work.

It is common for new arrangement to be prepared for musical works that are in the public domain. It is likely that copyright will subsist in a new arrangement. Any copyright in the new arrangement will not affect the ability to use the original musical work.

Introduction to Copyright in Sound Recordings

Copyright subsists in a sound recording separate from any copyright that may subsist in the musical work being performed in the sound recording.

Copying or Distributing Musical Works and Sound Recordings

Subject to the safeguards discussed below, under the Fair Dealing Policy:

  • A faculty member or administrative staff may copy or distribute up to 10% of a musical work that is in the form of sheet music.

  • If the musical work appears in a book containing other musical works, a faculty member or administrative staff may copy or distribute the entire musical work.

  • A faculty member or administrative staff may copy or distribute up to 10% of a sound recording

  • A faculty member or administrative staff may make a copy of a Short Excerpt of a musical work or sound recording for inclusion in a classroom presentation or in Blackboard Learn.

Safeguards

Copies of Short Excerpts of musical works and sound recordings are only to be provided or distributed to:

  • students enrolled in a course of study;

  • to other UofW faculty members and administrative staff of the university; and/or

  • to faculty members or students at another university with whom the faculty member is engaged in collaborative research (see also Copying for Research).

Performing a Musical Work and a Sound Recording

The Fair Dealing Policy does not apply to the public performance of a musical work or sound recording. If faculty members and administrative staff wish to do so without the copyright holder's permission, they must comply with section 29.5 of the Copyright Act, which permits faculty members to perform a musical work and a sound recording only if the performance is:

  • before an audience consisting primarily of students, instructors or persons directly responsible for setting curriculum at University of Windsor;

  • on UofW premises

  • for educational or training purposes.

In addition, with respect to sound recordings, the copy of the recording being played must not be an infringing copy or the person responsible for playing it must have no reasonable grounds to believe it's an infringing copy.

Note, section 29.5 allows the performance of an entire musical work and sound recording.

Effect of a License

Some electronic versions of musical works and sound recordings can only be accessed because the university has entered into a license agreement. Some license agreements limit how the version may be copied, distributed or performed by the university. Some licenses require end-users to agree to such limitations. These contractual limitations apply as a separate limitation from the fair dealing exception and section 29.5. Therefore, while the Copyright Act may allow a certain act of copying or performance, but if an applicable license prohibits that act, the license must be complied with if you with to use that licensed version of the Work.

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5. Audiovisual Works

Copying Audiovisual Works

Under the Fair Dealing Policy, University of Windsor faculty and staff may make a copy of up to 10% of a copyright-protected audiovisual work and distribute the Short Excerpt for research, private study and educational purposes, among other purposes, subject to the safeguards discussed below.

Acceptable methods of distribution include inclusion in a classroom presentation or in Blackboard Learn, and emailing the excerpt to students.

Audiovisual works include motion picture films, television programs and videos in any format or on any medium.

Safeguards

Copies of Short Excerpts of audiovisual works are only to be provided or distributed to:

  • students enrolled in a course of study;

  • to other UofW faculty members and staff of the university; and/or

  • to faculty members or students at another university with whom the faculty member is engaged in collaborative research (see also Copying for Research).

Performing Audiovisual Works

(a) Performance to students, on UofW premises, for educational or training purposes

The Fair Dealing Policy does not apply to the public performance of an audiovisual work. However, UofW faculty members and administrative staff can rely on the exception in section 29.5(d) of the Copyright Act, which permits faculty members to perform an audiovisual:

  • before an audience consisting primarily of students, instructors or persons directly responsible for setting curriculum at University of Windsor;

  • on UofW premises

  • for educational or training purposes; and

  • the copy of the work being performed is not an infringing copy or the person responsible for the performance must have no reasonable grounds to believe that it's an infringing copy.

Please note: this exception does not permit the copying of any part of an audiovisual work, even if it is necessary to copy the work in order to perform it.

(b) The Exception for Works Available through the Internet

Section 30.04 of the Copyright Act permits reproducing, communicating and performing in public by an educational institution or a person acting under its authority, for educational or training purposes of a Work that is made available through the Internet. This includes an audiovisual work posted to the Internet (e.g., a video posted on YouTube or Vimeo, but not Netflix which is a subscription-based source). There are a number of conditions that have to be met for the exception to apply: see the Copyright Guidelines and Flowchart for more information.

Effect of a License

Some electronic versions of audiovisual works can only be accessed because the university has entered into a license agreement. Some license agreements limit how the version may be copied, distributed or performed by the university (including faculty and staff). Some licenses also require end-users to agree to such limitations. These contractual limitations apply as a separate limitation from the fair dealing exception and section 29.5(d). Therefore, while the Copyright Act may allow a certain act of copying or performance, but if an applicable license prohibits that act, the license must be complied with if you with to use that licensed version of the Work.

Technological Protection Measures, aka Digital Locks

The Fair Dealing Policy does not permit the circumvention of digital locks to obtain access to copyright-protected audiovisual work. For more information on digital locks see the Copyright Guidelines

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6. Administrative Copying

Under the Fair Dealing Policy, University of Windsor faculty and staff may copy and distribute a Short Excerpt if the purpose of the copying is directly tied to the education of students, subject to the safeguards discussed below.

Safeguards

Administrative copying that falls within the Fair Dealing Policy must comply with the following safeguards:

  • Copies of the Short Excerpt are only provided to faculty members, administrative staff and students enrolled in the university who require copies for the educational purpose for which it was made;

  • If a copy of a Short Excerpt is made available electronically on a server or other device, the server or other device must be secure (e.g. password protected) and the copy must be accessible only by the persons referred to in item 1 (Note: email and posting to a Blackboard Learn site dedicated to such administrative purposes, are permissible modes of distribution.

Examples of administrative copying that would fall within the Fair Dealing Policy are:

  • the making of a copy of the Short Excerpt for the purpose of training administrative staff; and

  • copying the Short Excerpt and providing the copies to members of the board of governors or to members of a faculty or department committee for governance or general administrative purposes relating to the operation of the university.

Note: the fair dealing exception may apply to these instances of copying, but a separate fair dealing analysis must be undertaken to ensure compliance with the Copyright Act. If fair dealing is not available, compliance with the Copyright Act may be achieved by utilizing one of the UofW's electronic subscription licenses or obtaining permission from the copyright holder directly.

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Selected definitions:

"LMS" means a learning or course management system that is password protected or otherwise restricted to, and accessible only by, students in a specific course, unit or program (e.g. Blackboard Learn).

From the Copyright Requirements for Faculty & Staff:

"Teaching Staff means any person who teaches at or under the auspices of the University of Windsor, including without limitation faculty members, adjunct and clinical faculty, lecturers, instructors, and teaching assistants.

"Other Staff" means full-time and part-time staff members of UofW and any other person who works at or under the auspices of the University of Windsor who is not Teaching Staff.