On Sun, 15 Aug 1999, Cappone D'Angelo <cappyd[_at_]uvic.ca> wrote:
>
> On Fri, 13 Aug 1999, Robert Cumbow <rcumbow[_at_]grahamdunn.com> wrote:
> >
> > On Aug 12, 1999, Nora Robinson <nora.robinson[_at_]igate6.is.sait.ab.ca> wrote:
> > >
> > > Is the copying of press releases for educational purposes an
> > > infringement? For example, what if an instructor in a marketing or
> > > a writing class distributes a set of photocopied press releases from
> > > a variety of government, educational and commercial sources and
> > > asks her students to critique them? Rewrite them to improve them?
> > > Analyze their effectiveness?
> >
> > I would think this in-class use would be entirely permissible under US
> > law ... but I have no idea what Canadian law might provide.
>
> Assuming the press releases are subject to copyright protection...
>
> Under Canadian law, I might argue that these uses would be permitted
> as a fair dealing under Section 29 or 29.1 of the Copyright Act ONLY
> IF the STUDENTS make the copies for themselves (or if the copies are
> made for the students by a library, archive, or museum; see s. 30.2
> which I believe was proclaimed into force earlier this year):
>
> Fair dealing for the purpose of criticism or review does not infringe
> copyright if the source and author are mentioned. Although this may
> be intended primarily to allow for "quoting" the original as part of
> the critique, I don't see why it would not extend to making one
> photocopy per critique. Problems have arisen, though, when a
> published critique contains the copied work in its entirety -- though
> this might be permissible if necessary for the critique (e.g. if the
> critiqued work is very short/small).
>
> Fair dealing for the purpose of research does not infringe copyright.
> This is NOT restricted to private nor non-commercial uses (as opposed
> to, e.g., the "private study" provision). This provision might allow
> the students to copy the press releases to "analyze their
> effectiveness."
>
> Note that even if the use IS permitted research or criticism, the
> use must ALSO constitute a "fair dealing". Case law defines numerous
> factors to be considered - these are similar to the factors considered
> in the US test for fair use.
>
> When can the educational institution or instructor make copies for the
> students? If the work is "not commercially available in a medium that
> is appropriate ...," an educational institution or its agent may make
> a copy of the work to be used with an overhead projector or similar
> device, or may copy the work as required for a test or examination.
> Whether commercially available or not, a manual copy may be made on a
> dry-erase board, flip chart, or similar device for the purposes of
> education or training on the premises of an educational institution
> (see section 29.4).
>
> THIS INFORMATION IS NOT TO BE CONSTRUED AS LEGAL ADVICE - CONSULT A
> COMPETENT COPYRIGHT LAWYER FOR ADVICE.
Nora Robinson's original scenario most likely is not permitted under
the Canadian legislation, either as it exists right now or as it
*will* come into force on Sept. 1st. The latter, noted by C. D'Angelo,
establishes a number of limited exceptions to the copyright owner's
exclusive rights, including the so-called and hard fought for "single
copy exception". No part of any of the educational exceptions allow
for classroom copying, as is permitted (with limits) in the U.S. law.
If news releases are held to be protected under Canadian law, trying
to get around the statutory limits by having each student photocopy
the exact same set of news releases by using the single-copy exception
will not imo wash if it gets to court -- but then, I'm not a lawyer,
so this isn't any kind of a *legal* opinion.
Further, the single-copy exception is specifically and only for articles that appear in scientific, technical and scholarly periodicals. It is possible to apply it to other periodicals, such as newspapers and popular magazines, but only one year after their publication dates. There is no provision for other forms of publication, such as books, pamphlets or news releases (if not re-published in a newspaper) under this exception.
The use of the general fair dealing provision, suggested by C. D'Angelo, has its own problems, one of which is the question as to whether copying the entire work constitutes dealing fairly with it. This could also put a stop to trying to use the criticism or review aspect of the enumerated uses for which fair dealing might be applicable. Another is whether carrying out 'directed' "research" for a class assignment is really the same as what could be called non-private study, for want of a term, which would not be allowed by fair dealing.
Any copy made for use in an overhead projector must be a manual copy, the same as for a "dry erasable" board. One cannot photocopy the work onto an overhead transparancy!
As one can judge from the above, in Canada rights holders have users of copyright protected materials under very tough legal controls -- should they wish to enforce them. What we were promised by the government year after year since even before "Phase 1" of the copyright revisions were passed (1988) was not honoured in the "Phase 2" legislation (1997). So what can Nora Robinson do to be safe and certain?
A blanket licence with CANCOPY, the Canadian copyright collective/agency for reprography, does allow for the type of copying she asked about and indeed is designed for that purpose. Universities, colleges and schools which have such licences pay a fixed annual amount for each FTE student on a quarterly basis -- as long as there is no cost recovery (or profit taking) through selling the copies to the students. If there is, then another schedule of fees kicks in, as is set out in the licence.
Cheers,
Bernard Katz, Head, Special Collections and Library Development
McLaughlin Library, University of Guelph, Guelph, ON Canada N1G 2W1
Chair, Ontario Library Association Copyright Task Force
Member, Canadian Library Association Copyright Committee
V-P, Canadian Society of Copyright Consumers
e-m: bkatz[_at_]uoguelph.ca // v: 519-824-4120, ext.2089 // fax: 519-824-6931
Received on Tue Aug 17 1999 - 00:17:57 GMT
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