Usually when we talk about intellectual property at the University of Waterloo we are talking about Policy 73 (Intellectual Property Rights) which provides that inventors own much of the IP they create. Today, however, we’re talking specifically about your use of copyright-protected materials in class (or on LEARN) as an instructor and the risks of violating copyright.
First, a (very brief!) primer on copyright. A copyright is fundamentally the right to restrict distribution of a creative work. Let’s say I take some pictures of cats. I am the copyright holder of these pictures, and other people cannot legally make copies of, or distribute, these photos without my permission, unless under the so-called fair dealing provision. Fair dealing allows others to use portions of my work for educational purposes.
How do you know what you can use?
As an instructor, you will often be using others’ copyrighted materials for legitimate reasons, and our copyright law permits you to do this without seeking permission from the copyright holder under certain circumstances:
- You can provide links to legal content. It is important to make sure that the site you are linking to has permission to publish the material.
- The Library has permissions for many copyrighted works. They are all subject to different agreements, so be sure to check the usage rights.
- You can use materials whose copyright has expired (generally 50 years after death of the creator) or that have a Creative Commons licence (follow their instructions for how to give credit to the creator).
- You can use short excerpts under the copyright exception of fair dealing.
The University advises that sharing short excerpts, such as a chapter from a book, an article, or a poem can be allowed under fair dealing (with some caveats). The challenge with fair dealing is that what’s “fair” is evaluated on a case-by-case basis by our legal system, ultimately by a judge in a court case, if it comes to that. Copyright experts and lawyers can provide opinions about whether a use is fair or not, but that is advice and not law. Although many cases are fairly clear-cut, there are no guarantees. In fact, the Federal Court of Appeals just released a decision that questions whether the fair dealing guidelines adopted by most Ontario universities are strict enough (the University is currently reviewing this decision).
What happens if you get it wrong?
If you are found to be violating copyright, you may be subject to injunctions (preventing you from engaging in prohibited activities) and you may have to pay damages to the injured party. As an instructor, you carry the risk for any copyright protected material that you post in LEARN. In the event of a legal action against you, the provost (on recommendation of the University’s Legal and Immigration Services department) would determine whether to provide you with legal representation and indemnification on a case-by-case basis.
To reduce this risk, we encourage you to use the resources offered by the University to help you figure out what constitutes fair dealing and what licenses the University has. These resources include an instructors’ guide, a Frequently Asked Questions page, and a contact address: firstname.lastname@example.org. There’s even a dedicated copyright librarian, Lauren Byl, whom we featured on this blog recently!
FAUW is concerned about what happens if an instructor has been advised by the University that a particular use is fair dealing, but then a lawsuit arises. We believe that the University should always represent and indemnify the instructor in such a case, but the University doesn’t currently commit to this.
This post was written by Pat Lam, Associate Professor in Electrical and Computer Engineering, and FAUW staff.