Fair dealing and other copyright exceptions

Fair dealing allows a faculty member or instructor, or their proxy, to:

1. Provide a copy of a short excerpt to students enrolled in a course of study as a handout.

2. Email a copy of a short excerpt to students enrolled in a course of study.

3. Post a copy of a short excerpt on a learning management system (such as UM Learn) stored on a secure server or other device that is only accessible by students enrolled in a course of study, unit or program of instruction (e.g., password protected).

4. In some cases, include a copy of a short excerpt in a course pack sold to students enrolled in a course of study.

5. Distribute a copy of a short excerpt used in a lecture or classroom presentation to students enrolled in a course of study.

In each case, a copy of the short excerpt may also be provided or made available as required to another faculty member, instructor or to university staff.

As a safeguard to protect the interests of copyright owners, the work from which the copy of the short excerpt is made must be in the lawful possession of the university, faculty member or instructor. This would include a physical work in the collection of UM Libraries or faculty member or instructor. It would also include a borrowed work or a copy that was made based on the fair dealing exemption (for example, through the Libraries’ Document Delivery service).

When a work has been obtained through Document Delivery, refer to the terms included with the requested document. For example, the terms may allow private use only, or prohibit reproducing copies of the document.

For electronic resources, the licence details must be consulted before copying a short excerpt (see Library Licences and Other Licences).

According to fair dealing, a copy of a short excerpt from a print copyright protected work may be made by a UM academic staff member to use in conducting research or to include in a personal collection of research resources.

The member may share a copy of the short excerpt from the print copyright-protected work with other members and students within the university and or another educational institution with whom the member is engaged in collaborative research.

In sharing a copy of the short excerpt, the member may:

• email the copy to the students and other members
• post the copy to a website on a secure server or other device, provided the website is secured (e.g., password protected) and is only accessible by those members and students with whom the member is conducting collaborative research.  

When accessing a resource electronically through UM Libraries, refer to the terms of the licence to determine how, or if, the resource may be shared with non-UM collaborative researchers. In many cases, electronic resources may only be shared with other UM community members, and only in specific ways (for example, by linking to the library catalogue record rather than providing a PDF copy of an article).

UM Learn is a learning management system used to share course material. A short excerpt of a copyright protected work may be posted to UM Learn based on the fair dealing exemption if the following safeguards are met:

1. The learning management system must be operated by or under the control of the University of Manitoba.

2. The learning management system must be stored on a secure server or other device (e.g., password protected).

3. The short excerpts posted to the learning management system must only be accessible by students enrolled in the course of study, unit or program of instruction for which the short excerpts have been posted, and by faculty members, instructors or university staff who require access to the learning management system.

4. To give students the choice of how to access course materials, the same short excerpt may be made available to students through a learning management system, an email, a class handout or in a course pack. However, no more than a short excerpt from a work from across all editions and formats of a copyright protected work may be copied and made available to students during a specific course of study.

5. For research projects located in the learning management system which contain short excerpts, access should be provided only to faculty, staff and students participating in the research or providing assistance for the project.

6. During a specific course of study, multiple short excerpts from the same work which would amount to more than permitted by the fair dealing exemption may not be posted.

7. A short excerpt of a work may not be removed and replaced with another short excerpt from the same work which would have the effect of reproducing more than a fair dealing amount of the total work during a specific course of study.

UM Learn displays copyright messages regularly and users must abide by the “Computer Account – Usage Agreement” which includes a copyright component. UM Learn is subject to copyright compliance reviews.

See other sections in the UM Copyright Guidelines for information about more Copyright Act exemptions, library licences, etc. that might apply to material posted to UM Learn.

Upon request, the Copyright Office can verify all your course material to ensure it meets copyright rules.

Audiovisual works include motion picture films, television programs and videos.

Faculty, instructors and staff may copy short excerpts of a copyright protected audiovisual work and communicate those short excerpts to students for research, private study or education, among other fair dealing purposes.

It is permissible to record a short excerpt from a computer, television or projection screen using a video recording device (e.g., a smart phone) or software when the source content has been lawfully accessed and no digital locks or TPMs have been broken.

Musical works include musical scores and sheet music. Sound recordings include CDs and other media that contain recorded sound.

UM Copyright Guidelines permit faculty members, instructors and staff to copy short excerpts of copyright-protected musical works and sound recordings and to communicate those short excerpts to students for research, private study or education, among other fair dealing purposes.

Remember that when applying fair dealing to sound recordings you need to consider the individual recorded songs, rather than an album as a whole, when assessing the length of a short excerpt.

It is permissible to reproduce a short excerpt of a sound recording using a recording device (e.g., smart phone) or software when the source content has been lawfully accessed and no digital locks have been broken.

Evaluating the copyright term of musical works and sound recordings is complex, as is determining who the copyright owners are. Contact the Copyright Office for assistance.

Administrative copying includes copying copyright protected works made for one of two purposes:

• the development of a course of study, unit or program offered by the university
• the governance or administration of the university or of a faculty or department of the university

A short excerpt of a copyright protected work may be copied if the fair dealing purpose of the copying is tied to education. For example:

• making a copy of a short excerpt of a copyright protected work and emailing it to members of a faculty or department committee for use in developing a course of study, unit or program
• making a short excerpt of a copyright protected work for the purpose of training administrative staff

In both examples above, distribution should be limited to participants and assistants.

Administrative copying of a short excerpt of a copyright protected work that is made for the governance or administration of the university or a faculty or department of the university may be made. For example:

• copying a short excerpt of a copyright protected work and providing the copies to members of the board of governors or to members of a faculty or department committee for governance or general administrative purposes relating to the operation of the university

Sections 29.4 to 29.7, 30.01 and 30.04 of the Copyright Act provide specific exemptions that can be used by educational institutions or persons acting under their authority for educational training.

The Copyright Act provides exemptions for the following:

• internet content
• displaying a copyright protected work
• delivering content for online and in-person lessons
• tests or examinations
• performing a copyright protected audiovisual work
• news and commentary
• reproduction of a broadcast

Section 30.04(1) of the Copyright Act provides an exemption from copyright infringement for copying a copyright protected work available through the internet. The exemption applies to educational institutions and their employees for educational or training purposes and is subject to the following conditions:

1. The copy must mention the source of the work and the name of the author, performer, maker and/or broadcaster of the work.
2. The copyright protected work or the internet site where it is posted must not be protected by a digital lock (also known as a technical protection measure or TPM) that either restricts access to the work or restricts copying, communicating or performing in public the work.
3. There is no clearly visible notice posted on the internet site or on the work that prohibits the copying (note that the use of the copyright symbol by itself does not prevent applying this exemption).
4. The person making the copy knows or should have known the work was made available through the internet without the consent of the copyright owner.

Using the exemption under section 30.04(1) allows for an entire work from the internet to be copied or communicated.

Section 29.4(1) of the Copyright Act states that it is not an infringement of copyright to reproduce a copyright protected work, or do any other necessary act, in order to display the work on the premises of an educational institution for the purpose of education or training. This exemption extends beyond fair dealing in that it permits the display of more than a short excerpt of a work.

Except for the making of a manual reproduction (e.g., on a white board), the exemption does not apply if copies of the work are available for sale in Canada within a reasonable time, at a reasonable price, and the copies can be located with reasonable effort. For example, if an image bank of artwork is available under a licence, displaying those same images without a licence would likely be infringement.

Section 30.01 of the Copyright Act provides an exemption for a lesson, namely a presentation (such as PowerPoint) containing copyright protected material in excess of a short excerpt when presented in a classroom or in an online learning environment.

For this exemption to apply to an online learning environment, copies of the lesson must be distributed via a learning management system (such as UM Learn) and must be destroyed within 30 days after students in the course of study receive their final course evaluation.

Since all copies of the presentation (including students' copies) must be destroyed (not merely rendered inaccessible), faculty members and instructors may prefer to apply fair dealing rather than the exemption for a lesson and include a short excerpt only. See the relationship between exemptions below.

Fair dealing and the exemptions for displaying a work and a lesson are distinct and separate exemptions in the Copyright Act. Fair dealing may apply in circumstances in which the latter two exemptions also apply.

For example, a faculty member may post a classroom presentation to UM Learn that includes a short excerpt of a copyright protected work. The faculty member can rely on fair dealing for posting the classroom presentation – rather than the exemption – for a lesson and not have to destroy all copies of the classroom presentation within the 30-day period as required by the exemption for a lesson.

However, the faculty member cannot rely on fair dealing if the classroom presentation contains more than a short excerpt of a copyright protected work. Instead, the faculty member must ensure:

• the exemption for a lesson applies
• all copies of the classroom presentation are destroyed within the 30-day period 

Because of the destruction requirement, a faculty member may prefer applying fair dealing rather than the exemption for a lesson and only include a short excerpt in a classroom presentation that is to be posted to UM Learn.

As another example, teaching staff may display more than a fair amount in a classroom. However, no more than a fair amount may be posted to UM Learn. To avoid infringement, teaching staff may choose to remove any copyrighted content that exceeds fair dealing from the presentation before uploading the presentation slides to UM Learn.

Section 29.4(2) of the Copyright Act allows faculty members and instructors to reproduce, translate, perform or communicate a work required for a test or examination as long the material is not available commercially on the Canadian market within a reasonable time, for a reasonable price and located with reasonable effort. For example, if a bank of exam questions is for sale, the questions should not be copied freely under this exemption for the exam.

If more than a fair dealing amount of a commercially available text is used for a test or exam, the text must be purchased. For example, it would not be permitted to copy more than a fair dealing amount of a novella to use during an examination if the novella is commercially available for a reasonable price, can be obtained within a reasonable time and located with a reasonable effort. Similarly, an instructor cannot create a translation of a text for examination purposes if a translation can be commercially obtained in a reasonable time, for a reasonable price and located with a reasonable effort.

This exemption pertains to a live performance (e.g., play or recital), performing a cinematographic work (e.g., film), sound recording (e.g., music) or other subject matter (e.g., TV program).

Faculty members, instructors and staff can rely on the exemption in section 29.5 of the Copyright Act for some public performances on the premises of the university for educational or training purposes before an audience consisting primarily of students, instructors, or staff who set curriculum. To use this exemption, the work must either not be an infringing copy or the person responsible for the performance must have no reasonable grounds to believe that it is an infringing copy. The exemption in section 29.5 applies to performing all or any part of a work.

For example, this exemption would allow a class to perform a play, view a film, listen to a musical CD, or watch a television program as it is aired, under the conditions noted above.

For digital streams or digital copies of an audiovisual work, review the terms of use or licence allowances before considering this exemption. Many services such as Netflix, YouTube and Apple have contractual terms that limit performing some or all of their content to personal or home use only. In cases such as these, public performance in a classroom setting is prohibited. As an alternative to using a digital service with restrictive terms, an instructor may purchase or borrow a physical commercial copy of the work to take advantage of the exemption.

To use other types of content from the internet (such as a YouTube video), consider embedding the video in the teaching material or providing a link to students.

Tariff or licence fees must be paid when playing music or showing a film on university premises outside of an educational context. For example, an on-campus wedding social or retirement party with background music would likely incur SOCAN and Re:Sound fees. Similarly, a student group showing a feature film on campus for non-educational purposes would require a licence from Audio-Ciné (ACF), Criterion Pictures or another distributor.

While this exemption applies to public performances, it likely would not apply to any recordings or broadcasts made of the same public performances. For example, recording the production of a play or a musical recital performed by students in class would require permission from the students and of the copyright owner of the source material. Privacy rights, students’ copyright in their performances, and the rights to remuneration of the copyright owner in the composition or dramatic work being performed must all be considered prior to recording public performances.

Section 29.6 of the Copyright Act provides an exemption permitting the reproduction of a single copy of a news program or news commentary program to show to an audience of university students for educational training where the copy is shown on the university premises. Copied news and commentary programs must not be used for entertainment purposes.

A documentary does not qualify for the exemption and requires permission to copy.

Sections 29.7 of the Copyright Act allows an educational institution or someone acting under its authority to make a single copy of a work at the time it is broadcast, and to keep the copy for up to 30 days to determine whether or not to perform the copy for educational or training purposes.

If the copy is performed before university students on the university premises, or if the copy is retained for more than 30 days, it will be subject to royalties and other terms and conditions. Contact the Copyright Office in advance of showing a copy of a broadcast, or within 15 days of the recording being made, to determine the applicable royalties and conditions.

It is never permissible to show a copy of a broadcast obtained through unlawful means.

Section 32 of the Copyright Act permits a person with a perceptual disability, or a person acting at the request of such a person, or for a non-profit organization acting for the benefit of such a person to:

1. Make a copy or sound recording of a literary, musical, artistic or dramatic work, other than a cinematographic work (motion picture or film), in a format specially designed for persons with a perceptual disability
2. Make a fixed copy of a performer’s performance of a literary, musical, artistic or dramatic work, other than a cinematographic work (motion picture or film), in a format specially designed for persons with a perceptual disability
3. Make a copy of a sound recording, or a copy of a performance made under point 2 above, in a format specially designed for persons with a perceptual disability
4. Translate, adapt or reproduce in sign language a literary or dramatic work, other than a cinematographic work, in a format specially designed for persons with a perceptual disability
5. Provide a person with a perceptual disability with, or with access to, a work or other subject matter the above points apply to, in a format specially designed for persons with a perceptual disability, and do any other act that is necessary for that purpose
6. Perform in public a literary or dramatic work, other than a cinematographic work, in sign language, either live or in a format specially designed for persons with a perceptual disability

The exemption does not apply where the work or sound recording is commercially available on the Canadian market in a format specially designed to meet the needs of a person with a perceptual disability and can be acquired using reasonable effort within a reasonable time and at a reasonable price.

This exemption allows non-profit organizations to reproduce literary, musical, artistic or dramatic works (but not cinematographic works) in a format specifically designed for persons with a print disability to people outside of Canada in certain circumstances. If you believe this exemption may apply to your circumstances, contact the Copyright Office for further information.

Persons with perceptual disabilities may contact UM Libraries or Student Accessibility Services for information about their services and equipment.

Section 29.21 of the Copyright Act allows some copying for personal use of an individual, with limitations. This exemption is sometimes called the “YouTube exception.”

For example, recording a friend dancing to copyrighted music and posting the recording to YouTube for non-commercial purposes is likely allowed. As well, creating a musical or video mash-up for non-commercial purposes is also likely allowed. The limitations on using this exemption include:

1. The use/dissemination of the new work must be solely for non-commercial purposes;
2. The source (and name of author, performer, maker or broadcaster if provided) must be included if it is reasonable to do in the circumstances;
3. The user has reasonable grounds to believe that the original work or copy they reused was not an infringing copy; and
4. The use/dissemination of the new work does not have a substantial adverse effect on the original work (for example, no detrimental effect on the market for the original work, or that the new work is a substitute for the original work).

Among other limitations, breaking a digital lock to access the original works is prohibited.