Scenario 3: Available here. Anwers (in progress) below.

Is this form of reproduction a violation of copyright laws?

Francesca's actions, while performed by an individual, fall under the guidelines set out for institutional copying. As described in Hofman's Introducing Copyright, there are such things as individual licences, general licences and blanket licences.

While Francesca's school is under-funded in comparison to the more prosperous institutions a blanket licence for her school would be its best option, because a flat fee can be paid by the school for its staffs' reproduction charges. Unfortunately this is not feasible; therefore Francesca's is forced to reproduce, by-hand, her lesson material for her students' use.

The guidelines of the Copyright Board of Canada state that the agreed upon tariffs according to the notice statement amounts to about ‘$1.73 per calendar year per pre-school, elementary and secondary FTE (full-time equivalent) student’ (http://www.cb-cda.gc.ca/tariffs-tarifs/certified-homologues/2007/20070217-e-b.pdf). Hardly a workable solution for an under-funded school, because they tend to have the higher student populations.

In conclusion, provided that Francesca’s copying fell within the 10% fair-dealing provision she would be allowed to make hard-copies for school purposes. The limitations can be extended by the conditions stated in Section 3, subsection 3 of the Canada Gazette, for instance (http://www.cb-cda.gc.ca/tariffs-tarifs/certified-homologues/2009/20090626-b.pdf). Many countries would follow these same provisions, so we don’t believe Francesca has violated copyright by reproducing them in overhead form.

If so, how could Francesca avoid violating copyright in this situation?? 

Scenario 2: Available here. Answers below. 

What exceptional uses can Xuan make of the resources, including how much of which resource and under what conditions?

Questions to test your understanding:

1. What is fair use?  What are the four factors courts use to decide if an activity is fair use?  What is a "transformative" use?

2. What is fair dealing?

3. What copyright exceptions apply in your jurisdiction?

4. How 'much' of a work can be copied under the exceptions?

5. What do the exceptions in your jurisdiction cover; quotations, examples, illustration, testing, practicals, experimentation, translation, research, transformative use?

For the above scenario we assume that the copyright of the three resources is still in effect: that is, that they do not reside in the public domain. We also assume that she would like to make copies of the resources to distribute to her students.

In Canada, educational institutions are able to do the following, without permission of the copyright holder, during instruction on the institution's premises:

- manually copy a copyrighted work onto a chalkboard, dry-erase board, or flip chart

- copy a work for use as a projected image (via overhead projector, etc.) so long as it is not available in a commercial format

In this case, Xuan may freely make a single copy of the photograph to display in class via a projector, giving credit to the copyright holder.

Educational institutions are unable to produce multiple copies of a book (or part of a book) without the permission of copyright holder. The same is true for making copies of a newspaper article. Consent for making multiple photocopies may be granted by the either the copyright holder or a photocopying collective that may issue a license.

Educational institutions may be licensed by Access Copyright (formerly CANCOPY). The Canadian Copyright Licensing Agency (CANCOPY) was established to govern the right to produce copies of published printed material. Access Copyright distributes licenses to educational institutions to make copies of work for academic purposes. The Access Copyright license enables instructors to copy up to 10% of a work.

There are a few exceptions to this 10% guideline. In Xuan's scenario, one of the exceptions would entitle her to reproduce the entire newspaper article. Another exception that may benefit Xuan would be if the book is out of print because sometimes a license will enable her to photocopy the entire book.

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A note about assessment and feedback

Which of the materials used by Professor Dube are subject to copyright? Why or why not in each case? (Jonathan)

According to the scenario, the only material that still exists under copyright is Professor Dube's original research and the journal article that she has, most likely, licensed to the publisher, which has now been recently published. The data and images, presented alongside her previous research, resides in the Public Domain including the following: the bishop's account; the products produced by a government agency (e.g., NASA); and the factual weather data.

The personal account was published before 1923, therefore places it in the public domain (Brewer, 2007), and 'NASA still images...generally are not copyrighted. You may use NASA imagery, video, audio, and data files used for the rendition of 3-dimensional models for education or informational purposes' (NASA, 2008). In addition to this the factual data on local weather patterns. Example that exist in the public domain include facts, ideas and news (Canadian Intellectual Property Office, year, p. 5).

Finally, Dube's previous research can be used in any way she deems fit as it belongs to  her, however the rights, or assignment thereof, of her recently published journal article, belongs to the publisher. There been a clause in her agreement with the publisher for a reversal of these rights after a certain amount of time, but this we do not know.

< I don't think Fair Use is relevant to data about the weather. It applies where you want to use extracts from a published work, sound clip or  movie. Facts are not subject to copyright.

The journal holds copyright. There will be a contract where the Prof assigns copyright to the journal as a condition of publication. Andrew>

Fair Use would require Dube to either paraphrase the work or use only an excerpt of it. If Dube agreed to a contract that would assign copyright to the journal, then I agree with Andrew.

I agree also, I have restructed that answer to allow that change (Jonathan)

What could Professor Dube do about the refusal to allow her to assign her own article? 

Professor Dube could reproduce the article in an alternate format. It is only the journal's format that is subject to infringement in this case, assuming Dube retains copyright of the original article. <Meaghan I think this is wrong. The Prof won't hold copyright.  I think the format issue is secondary, although there would likely be copyright on the design of the journal.  Here's an alternative answer. Andrew > - The prof may retain some rights depending on the agreement with the publisher, no? I think knowing what sort of contract was agreed to would be necessary to reach a definitive answer.

<The publisher refused permission, so.. > Nevermind, I was thinking it may differ depending on how she wants to supply the copies... photocopying, inclusion in a course pack, etc.

The publisher of the academic journal holds copyright on the publication, not the author. Some journals will give consent for the author’s free personal academic use. In this case, since the publisher has refused, Professor Dube’s best strategy is to provide her students with a pre-publication draft.

The factual, public domain text and non-copyright satellite images are not subject to copyright, as has been noted. (We assume the weather data has been collected as part of Professor Dube’s research, rather than from a commercial database.) Anyone can re-use these materials. The text should be a pre-peer review version which differs from the published paper to avoid giving grounds for legal action from the journal. (This is what I meant by alternate format)  <oh, cool. Thought you meant reformating the same text.> More like taking the word document or however she typed it up initially and handing that out. I should have been specific :)

I think the re-typing of the article would suffice, in the UK typographical arrangement is also copyrighted (25 years I think), so Professor Dube could circulate a pre-print article to her class and some publisher might allow this - knowingly or otherwise. (Jonathan)

An alternative variant is to quote from the paper using the standard copyright exemption for scholarly use and criticism, though only extracts or paraphrasing may be used. In this example the Professor is in the same position in relation to the copyright of the work she produced as in using work by another author published in the journal. (Andrew)  In Commonwealth countries, such scholarly use for criticism is known as fair dealing.

Questions:

1. What is copyright? (Jonathan)

2. What activities does copyright prohibit? (???)

3. Does copyright cover ideas or only expressions? (Meaghan)

4. What requirements must resource meet for copyright to apply? (Meaghan)

5. What about the rights of authors? Can someone sell the right to be known as the author? What right does the author have over how others who get copyright over her work can change it?

6. What is the public domain? When does something enter the public domain? Are there some works that automatically enter the public domain?

Answers:

1. Copyright is a set of rights and permissions that governs the expression of ideas created by an individual or corporation. They are a series of measures that set out the incentives of creation. "Copyright law has always been a balancing act between the rights of creators and the rights of the public" (Electronic Frontier Foundation, http://www.teachingcopyright.org/curriculum/hs/2). Increasingly the digital world has blurred the lines between creator and consumer and the use of copyrighted material online is under stress from both sides. The application of copyright that is held by an artist is usually through the use of exclusive licenses or assignments that "describes the transfer of copyright from one holder to another" (Hofman, 2008, p. 48)
2. Copyright grants an exclusive right to determine the use and expression which may be made of a creative work. Thus, without the permission of the copyright holder, a work may not be reproduced, distributed, performed, or commercially exploited. Although most legal attention is directed at the commercial use of copyright, it is worth noting that artists sometimes refuse permission for the use or re-use of their work because the meaning would be changed in its re-use or re-interpretation. (Andrew)
3. Copyright does not protect ideas. It is limited to "the expression in a fixed manner" (Hofman, 30). In other words, copyright applies only to works that have been written or recorded and does not apply to the fundamental concepts themselves (Frequently Asked Questions About Copyright, http://www.cendi.gov/publications/04-8copyright.html). Ideas are considered public domain and are not subject to copyright laws (Canadian Intellectual Property Office: A Guide to Copyrights, 5). One may circumvent this restriction by creating a preliminary version of the idea. Once the idea is recorded in a fixed medium, it is automatically may be protected by an all rights reserved model. (Could we consider that it is automatically protected? Copyright registration is no longer required in most countries. I think registration was done away with in the United States in 1988 - Jonathan)
4. For copyright to apply, a resource must be an original creative work. Copyright restrictions in most countries also require the work to exist in a fixed medium. The Berne Convention governs that copyright automatically applies to a resource the moment it is fixed. Of course, not all countries subscribe to the Berne Convention. In such cases, a body of work must first be published in order to be protected by copyright if the author or artist is not a citizen or resident of a Union country (Hoffman, 31).
5. The author of a creative work automatically holds copyright. Under the Berne Convention it is not necessary for the work to published for copyright to apply. In practice, this right is often assigned to a publisher, producer or record company under contract law and the rights holder will exploit the copyright. Employees do not hold copyright to work carried out under their contract of employment. Academic employees are usually exempt (Hofman, 2009, p. 35) although some institutions overide the academic exception with a clause in the contract of employment.

   The practice of ghostwriting suggests they can. But they cannot transfer the right to be the author. The actual author would hold copyright and moral rights to the work. “Inheritance is the only way moral rights and the droit de suite pass from the original creator of a work to another.” (Hofman, 2009, p. 49).

   The author has a moral right, even after transfer of copyright, to object to any “distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.” (Berne Convention Article 6bi(1) in Hofman 2009 p 43).

6. Works in the public domain are works to which copyright does not apply (Hofman, 2009, p. 57) Some works exist in the public domain because copyright has not been extended to include them, for example expressions of traditional culture. Other examples that exist in the public domain include facts, ideas, and news (Canadian Intellectual Property Office: A Guide to Copyrights, 5). Others enter the public domain on the expiry of the period, or term, of copyright (Hofman, 2009, p. 58)

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