Using Audiovisual Materials at U of T: Copyright Considerations
Copyright law in Canada provides certain exclusive rights to the owners of copyright in original literary, dramatic, musical, and artistic works, as well as in sound recordings, performers’ performances, and broadcast signals. That includes movies, television programs, and other audiovisual works. The law also provides for a number of so-called “user rights”, which make it permissible to do certain things that might otherwise infringe copyright if done without a licence. Navigating this sometimes complex web of exclusive rights and exceptions can be difficult even for an educated and savvy user.
At the University of Toronto, audiovisual materials are used in a variety of ways, both in the classroom and in other settings. The legal considerations that apply in each case will depend on the context of each use. As a general principle, however, it is fair to say that, where a movie, television program, or other audiovisual material is shown in a public setting on campus – even in a classroom – a licence will be required unless the showing is for education and training purposes (or, where fair dealing may apply, for other allowable purposes), as explained below. If the showing is for educational and training purposes, it may be subject to an exception in the Copyright Act, provided that other specific statutory requirements are met.
A. Copyright in Audiovisual Works: The Basics
For copyright purposes, movies, television programs, and other audiovisual materials are protected as “cinematographic works”, which in turn fall into the general category of “dramatic works” (even if they have no particular “dramatic” quality). The exclusive rights of the owner of copyright in a dramatic work last for the life of the author plus 50 years and include, among other things, the right to do the following:
· produce or reproduce the work (or any substantial part of it);
· perform the work (or any substantial part of it) in public;
· publish a previously unpublished work (or any substantial part of it);
· produce, reproduce, perform or publish any translation of the work;
· make a sound recording or film of the work;
· reproduce, adapt and publicly present the work as a cinematographic work (i.e., in audiovisual format); and
· communicate the work to the public by telecommunication (i.e., by television broadcast or over the Internet), including by making it available to individual members of the public on demand.
The copyright owner also has the exclusive right to authorize others to do any of these things.
Where the audiovisual work is broadcast, further copyright protection may apply to the broadcast signal in which it is transmitted. Among other things, a television broadcaster generally has the exclusive right to perform its signal, or authorize its performance, in a place open to the public upon payment of an entrance fee.
It is an infringement of copyright to do, without permission from the copyright owner, any act that only the copyright owner is entitled to do. Copyright infringement can result in penalties, including monetary damages, injunctions, and even fines or imprisonment in the most extreme cases. In many cases, permission to use an audiovisual work comes in the form of a licence, either directly from the copyright owner, via a distributor or agency representing the copyright owner, via a public licence such as a Creative Commons licence, or from a collective society that represents multiple copyright owners.
B. Exceptions to Copyright Infringement
Notwithstanding the exclusive rights of the copyright owner, there are certain exceptions to copyright infringement – sometimes referred to as “users’ rights” – that can be relied on in order to use works without obtaining consent from the copyright owner.
For example, under section 29 of the Copyright Act, R.S.C. 1985, c. C-42, the use of certain works for the purposes of research, private study, education, parody or satire may constitute “fair dealing”. However, the concept of fair dealing is complex, fact-specific, and often imprecise. Fair dealing is not defined in the Copyright Act; instead, whether an individual dealing constitutes “fair dealing” will depend on a case-by-case determination of whether the dealing is for one of the allowable purposes set out in the Copyright Act and whether the dealing is “fair”. To determine whether the dealing is “fair”, the court will consider the purpose of the dealing, the character of the dealing, the amount of the dealing, alternatives to the dealing, the nature of the work and the effect of the dealing on the market for the work. For more information on fair dealing, please consult the University’s Fair Dealing Guidelines, available online at http://www.provost.utoronto.ca/Assets/Provost+Digital+Assets/26.pdf.
In addition to fair dealing, the Copyright Act includes several exceptions that apply specifically to not-for-profit educational institutions, including the University. Some of these exceptions apply specifically to the use of audiovisual materials. However, in order to qualify for these exceptions, the activity must be for the purposes of education and training and take place on the premises of the University.
1. Reproducing, Performing or Communicating a Work for a Test or Exam
Section 29.4(2) allows the University, or a person acting under its authority, to reproduce, translate, perform in public or communicate to the public by telecommunication, without motive of gain, a work (including an audiovisual work) as required for a test or exam. Any performance of the work in public or communication of the work by telecommunication to the public must take place on the premises of the University. Further, if the work is “commercially available” in a medium suitable for the purpose, and if its use is not covered by fair dealing or another exception, a licence must be obtained before using it for a test or exam.
2. Public Performance by or for Students
Section 29.5 of the Copyright Act provides, among other things, that the following uses of audiovisual works, if done on the premises of the University, may not infringe copyright:
· a performance in public by the University, or a person acting under its authority, of lawfully-received TV, radio or Internet content, at the same time as it is broadcast or streamed; and
· a performance in public by the University, or a person acting under its authority, of an audiovisual work, provided that it is not an infringing copy.
In each case, however, the activity must be undertaken by the University or someone acting under its authority (which typically will not include student groups), and the audience must consist primarily of students of the University, instructors acting under its authority, or those directly responsible for setting a curriculum for the University. If those conditions are not met, or if the performances are not carried out for education or training purposes and not for profit (i.e., anything more than cost recovery), the exception will not be available and the permission of the copyright owner will likely need to be obtained. In other words, while this exception might apply to the showing of a movie in a classroom or some other setting directly related to a course or program of study (including via distance education), it would not permit the same movie to be shown at a student association’s movie night or other social event.
Note also that this exception does not apply to a broadcast or transmission that is unlawfully received or an infringing copy. Content acquired through unauthorized streaming sites or illegally decoded satellite signals, for example, will not qualify for the exception and may attract liability.
3. Reproduction and Public Performance of Broadcast or Streamed Programming
Other exceptions permit the reproduction of broadcast programming, in certain circumstances, to facilitate its later performance. Here again, though, the specific requirements of each exception must be met.
Under section 29.6 of the Copyright Act, the University, or a person acting under its authority, may make a single copy of a news or news commentary program (excluding a documentary) at the time of its “communication to the public” (which includes both traditional broadcast and Internet transmission), for the purposes of performing the copy for University students at a later time for educational or training purposes. The same section also allows the University, or a person acting under its authority, to perform the copy on the premises of the University, for an audience consisting primarily of University students, for educational or training purposes.
Similarly, section 29.7 of the Copyright Act permits the University, or a person acting under its authority, to make a single copy of any other program, including a documentary, at the time it is “communicated to the public”, and to keep it for up to 30 days for the purpose of deciding whether to use the copy for educational or training purposes. After 30 days, the University must either destroy the copy or pay any royalties and/or comply with any terms and conditions fixed under the Copyright Act for the making of the copy and/or its performance in public. Further, if performed in public, the audience must consist primarily of students of the University, on the premises of the University, and the performance must be for educational or training purposes. Otherwise, the exception will not apply.
Under both section 29.6 and section 29.7, the broadcast or stream must also have been lawfully received. Content acquired through unauthorized means will not qualify and may attract liability.
4. Work Available Through the Internet
Under section 30.04 of the Copyright Act, the University, or a person acting under its authority, may, for educational or training purposes, do any of the following things with a work or other subject-matter available through the Internet:
· reproduce it;
· transmit it electronically to University students or other persons acting under the University’s authority;
· perform it in public for an audience consisting primarily of University students or other persons acting under the University’s authority; and
· do any other act necessary for the purpose of these acts.
This is potentially a very broad exception that will streamline the educational use of a wealth of material available through the Internet. However, care must be taken not to exceed the scope of the exception. First, although it is true that a DVD ordered from Amazon.ca might technically be “available through the Internet,” it is unlikely that the exception is intended to capture works in physical format, regardless of how they are acquired. Rather, it is safe to assume that the exception applies only to works in digital format that are posted on the Internet. Second, the exception is not available if:
· the material, or the website where it is posted, is protected by a technological protection measure (sometimes called a “digital lock”) that restricts access to the material – for example, newspaper content that is behind a paywall;
· the material is protected by a technological protection measure that restricts the doing of the act itself – for example, a digital lock that is intended to prevent the work from being copied;
· a clearly visible notice prohibiting the act – but not merely the “©” copyright symbol – is posted either on the material or on the website where it is posted; or
· the person who does the act knows or should have known that the material was made available through the Internet without the consent of the copyright owner – for example, if a movie or television program is streamed or downloaded from an unauthorized site or service like The Pirate Bay.
C. For Further Information
As can be seen from the discussion above, these exceptions are not absolute. They contain strict conditions and restrictions that, if not observed, render the exceptions inapplicable. They are also limited to education and training purposes; reproducing or publicly performing works for pure entertainment or recreation will generally require a licence and the payment of a fee. For further assistance, please consult the University’s Fair Dealing Guidelines, available online at http://www.provost.utoronto.ca/Assets/Provost+Digital+Assets/26.pdf or contact Bobby Glushko, Scholarly Communications and Copyright Librarian at email@example.com.
 As of January 1, 2014, there is no tariff in place for these uses, which means for the moment that there are no royalties to be paid for retaining these copies for more than 30 days or performing them in public, as long as the copies are made and performed only for education or training purposes and for audiences consisting primarily of students of the University. However, other terms and conditions remain in force, including the requirement that copies made under section 29.7 be marked with a unique number or other reference code and that certain prescribed records be kept of the making and destruction of each copy and retained for two years after the copy is destroyed. See Educational Program, Work and Other Subject-Matter Record-Keeping Regulations, SOR/2001-296.
- Using Audiovisual Materials at U of T: FAQThis page addresses a number of frequently asked questions related to the legal use of audiovisual materials on U of T campus.