Copyright

This primer is a brief introduction to Canadian copyright for UBC faculty, students. and staff. For more information, links are provided throughout to original information sources and all references are listed at the end.

What is Copyright?

Copyright, in its simplest form, means the exclusive right to copy. Universities find themselves in a unique position of being both a user and creator of copyrightable works. As users, individuals and libraries make copies for educational, scholarly and research purposes; and as creators, faculty, students and staff produce extensive numbers of work as part of their regular activities.

At the outset, two classes of property should be differentiated: (1) physical or tangible property, and (2) intellectual property. Physical property refers to a tangible object like a book or a sculpture, while intellectual property refers to the intellectual nature of an object, such as the expression of the ideas contained in a book.

While one may purchase, own, and transfer physical property, like a book, ownership of that physical property does not convey title to the intellectual property or the right to control and convey the intellectual component of the book. This right is reserved for the owner of the copyright in the book. In Canada, the rights conveyed upon a creator are set out in the Canadian Copyright Act.

Copyright is only one form of intellectual property. Other forms include patent, trademark, trade secret, circuit topography, plant breeders' rights, and industrial design. Information regarding these other forms of intellectual property can be obtained from the University-Industry Liaison Office or the Canadian Intellectual Property Office. One feature of copyright that distinguishes it from patent protection is that copyright protects the form of expression of an idea rather than the idea itself. This implies that one can read another author's work, for example Leslie Ellen Harris' excellent book entitled Canadian Copyright Law, glean facts and ideas from her work, and express them in a primer like this. As a result, without infringing upon Ms. Harris' copyright, one can claim copyright of the new work, i.e. this article.

In summary, copyright entitles the holder to:

• The right to produce or reproduce the work or any substantial part thereof in any material form whatsoever.
  
  
• The right to perform the work in public, including the delivery of lectures.
  
  
• The right to first publication of a work.
  
  
• The right of adaptation of a work, for example from a book to a film.
  
  
• The right of translation.
  
  
• The right of telecommunication.
  

The owner of a copyright not only has the above rights, but has the sole authority to authorize the use of any of these rights. The copyright owner has the option to keep all of these rights, assign some or all of these rights to another party (transfer ownership), or license some or all of these rights to another party.

Moral Rights

In addition to copyright, the Canadian Copyright Act grants additional rights known as moral rights. These include:

• The right of paternity including the right to claim authorship, remain anonymous or use a pen name.
  
  
• The right of integrity including the right to prevent changes to a work or to prevent the use of a work in association with a product, service, cause or institution.
  

Unlike copyright, moral rights may not be assigned or transferred to another party. At most, authors can agree to waive their moral rights - that is to say, they can agree not to exert their moral rights in a work.

What Does Copyright Cover?

The Canadian Copyright Act identifies four categories of creative works that can be protected by copyright. These are dramatic works, musical works, artistic works, and literary works.

While each of these forms of copyrightable works are present in the university environment, literary works are perhaps the most common and are the focus of this primer. That said, all general copyright principles equally apply to cyberspace and online environments. Readers are encouraged to review the materials referenced throughout this primer (and listed at the end) for additional information regarding the other categories of copyrightable works and the specific conditions that apply to each.

Literary Works

Literary works as defined in the Canadian Copyright Act include tables, compilations, translations and computer programs. Examples of literary works include books, pamphlets, letters, memoranda, titles, lectures, and computer programs. Special attention should be paid to collective works or compilations, where the copyright may exist at both the level of the individual works compiled as well as for the collective work itself. In a similar fashion, in the case of translations, the copyright will exist separately in both the original work and the translation. In addition, works of joint authorship require special attention in determining the ownership and duration of copyright protection.

Eligibility Requirements

Copyright is created automatically at the time a work is authored and no special action is required in the form of applying for a copyright notice or registering the copyright in order to enable the copyright owner to enjoy the full protection of the copyright laws.

Under the terms of the Canadian Copyright Act, to be eligible to receive copyright protection a work must meet the following three criteria: (1) Originality, (2) Fixation, and (3) Nationality of creator/place of publication.

• Originality, while not specifically defined in the Canadian Copyright Act, is characterized by the following features: the work must originate with the author and not be a copy of another work; it must be the output of independent, creative effort; and it must be created using the skill, experience, labour, taste, discretion, selection, judgment, personal effort, knowledge, ability, reflection and imagination of the author.
  
  
• Fixation means that the work is expressed in some material form or fixed manner that is capable of identification and having more or less permanent endurance.
  
  
• Nationality criteria are met when, at the time the work was created, the author was a Canadian citizen, a resident within the Commonwealth, or a citizen of a country which adheres to the Berne Convention.

Copyright Notice & Registration

While copyright exists automatically upon the creation of a work, it is advisable to post a copyright notice on the work that states: (1) The word "Copyright" or the symbol © (2) the name of the copyright owner, and (3) the year of first publication. A list of examples follow:

©The University of British Columbia, 2005.

© [Name of owner of copyright], [First year of publication]. All rights reserved.

© [Name of owner of copyright], [First year of publication]. Any part of this document may be freely reproduced without obtaining the permission of the copyright owner, provided that no changes whatsoever are made to the text.

© [Name of owner of copyright], [First year of publication]. Any part of this document may be freely reproduced without obtaining the permission of the copyright owner, provided that this copyright notice is included in its entirety in any and all copies of this document.

© [Name of owner of copyright], [First year of publication]. Any part of this document may be freely reproduced for educational purposes without obtaining the permission of the copyright owner or payment of any royalties to the copyright owner. No part of this document may be reproduced or used other than for educational purposes without the prior written permission of the copyright owner.

Similarly, while registration of the copyright with the Canadian Intellectual Property Office is not required, it may strengthen your case and increase the potential amount you can claim in the event of a copyright infringement suit.

Works are considered in the public domain because:

• The term of copyright protection has expired
  
  
• The work was not eligible for copyright protection
  
  
• The copyright owner has given the copyright in the work to the public (Copyright Matters, 2005).
  

If the copyright owner wishes to place the work in the public domain &and waive his or her copyright in the work to the public, any copyright notice can be replaced with:

Any part of this document may be freely reproduced or used for any purpose without obtaining the permission of the author and/or the copyright owner.


Authorship & Ownership

According to the Canadian Copyright Act, the author of a work is normally deemed to be the owner of the copyright of that work. Generally speaking, in the context of a literary work, the author of the work is the first person to express the idea in a tangible form, i.e. to write it down. Note that the author is considered to be the writer of the work as opposed to the person who first conceived the idea. Where literary works are produced in the course of one's employment, those works are considered to be "works for hire", and while the authorship vests in the creator, the copyright ownership vests automatically with the employer. This arrangement can be modified through a contractual agreement between the author and the employer. In the case of UBC, this has been accomplished through UBC Policy #88 on Patents and Licensing. In general, copyright exists for the life of the author plus fifty years, irrespective of whether the author has licensed or assigned the copyright in the work or not.

UBC Policy Regarding Copyright

Under UBC Policy #88 on Patents and Licensing, "literary works" are defined differently than in the Canadian Copyright Act. In the UBC policy, literary works include books, lecture notes, laboratory manuals, artifacts, visual art and music. However, specifically excluded from this list are audiovisual and computer materials including audio and video tapes, slides and photographs, films, computer programs and computer-stored information. The Policy, which applies to faculty, students and staff, goes on to say that "Ownership of and intellectual property rights to 'literary works' produced by those connected with the University are vested in the individuals involved." Classes of works excluded from the definition of "literary works" are then subsumed under the Policy's definition of "invention" and if there is a proposal to protect or license the "invention" then the rights to that invention, including copyright, are assigned to the University.

Copyrights for Teaching & Learning At UBC

Under UBC's Universities and Community Colleges License with ACCESS©, faculty, staff and students can make copies of most copyright-protected works for teaching, research, study and administrative purposes. The licence provides permission to copy from a vast repertoire of commercially published books, magazines, journals and newspapers. The license covers only copying done in support of educational purposes. For example teachers can copy print materials in single copies, for use in examinations, or only up to 10% of the work with some notable exceptions, see www.accesscopyright.ca for details.

Guides & Templates for On-line Learning Environments

When determining what materials to include in an online curriculum, ask the following questions:

• Is there copyright in the materials?
  
  
• Who owns copyright in the materials?
  
  
• Would reproduction by UBC in connection with the online curriculum without the consent of the copyright owner amount to copyright infringement?
  
  
• How to obtain permission, assuming it is required?

Here is an example of useful language to include in advance of allowing students to participate in an online learning environment that includes chat rooms & bulletin boards:

You agree that upon posting any material within a chat room, bulletin board or group, you grant UBC a non-exclusive worldwide, royalty free, perpetual, non-revocable license under your copyrights or other intellectual property rights, if any, in such material to distribute, display, and reproduce such material to other students and faculty of UBC; and you specifically waive any and all of your moral rights in such material. You also grant UBC the right to authorize the downloading and printing in whole or in of any material that you have posted to a chat room, bulletin board or group, by other students and faculty of UBC for their personal use.

Here is an example of language to include when including third party links to other websites & resources:

As part of the on-line learning environment, UBC and its faculty may provide links to other World Wide Web sites and resources. You acknowledge and agree that UBC is not responsible for the availability of these outside resources, and does not endorse and is not responsible for any content, advertising, products or other material on or available from such sites or resources. You further acknowledge and agree that UBC shall not be held responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused by use of or reliance on any such content, goods or services available on or through any such sites or resources.

References

UBC holds a Universities and Community Colleges License with ACCESS. On the Access© Web site you will find license information on: digital copying, document delivery, out of print works, print music, transactional licences, what you can copy, what you can't copy, Digitrack, full-reporting log, licence FAQs, and out of print requests.

Canadian Intellectual Property Office's Guide to Copyright

Canadian Copyright Act

Harris, Lesley Ellen. Canadian Copyright Law. Toronto: McGraw-Hill Ryerson Limited, 1992.

Noel, Wanda and Gerald Breau. Copyright Matters! Some Key Questions and Answers for Teachers. Council of Ministers of Education, Canada, 2005.

Vaver, David. Essentials of Canadian Law: Copyright Law. Toronto, Irwin Law, 2000

Glossary (from the Copyright Act, Section 2)

Architectural Work or Art means a building or structure or any model of a building or structure.

Artistic Work includes paintings, drawings, maps, charts, plans, photographs, engravings, sculptures, works of artistic craftsmanship and architectural works or art.

Book includes every volume, part or division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart or plan separately published.

Collective Work means:
(a) an encyclopedia, dictionary, year book or similar work;
(b) a newspaper, review, magazine or similar periodical; and,
(c) any work written in distinct parts by different authors, or in which works or parts of works of different authors are incorporated.

Computer Program means a set of instructions or statements, expressed, fixed, embodied or stored in any manner, that is to be used directly or indirectly in a computer in order to bring about a specific result.

Dramatic Work includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise, and any cinematograph production where the arrangement or acting form or the combination of incidents represented give the work an original character.

Infringing, when applied to a copy of a work in which copyright subsists, means any copy, including any colourable imitation, made, or imported in contravention of the Canadian Copyright Act.

Lecture includes address, speech and sermon.

Literary Work includes tables, compilations, translations and computer programs.

Moral Rights means the right to the integrity of the work and, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.

Musical Work means any combination of melody and harmony or either of them, printed, reduced to writing or otherwise graphically produced or reproduced.

Performance means any acoustic representation of a work or any visual representation of any dramatic action including a representation made by means of any mechanical instrument or by radio communications.

Photograph includes photolithograph and any work produced by any process analogous to photography. Single frames from a movie (such as used for a poster) will most likely be protected as part of a dramatic work, but a digital photograph (scanned in or taken) is protected as a photograph unless it is electronically manipulated. At some point the photograph "loses its identity and becomes a generic artistic work or an original electronic painting. The classification will depend on the degree of artistry used and the extent to which the result differs from the original scanned work" (Vaver, 42).

Publication means the issue of copies of the work to the public, and does not include the performance in public of a dramatic or musical work, the delivery in public of a lecture, the exhibition in public of an artistic work or the construction of an architectural work of art.

Telecommunication means any transmission of signs, signals, writing, images or sounds or intelligence of any nature by wire, radio, visual, optical or other electromagnetic system.

Work includes the title thereof when such title is original and distinctive.

Work of Joint Authorship means a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors.