Copyright and AUCC Draft Fair Dealing Guidelines

PDADC#40, 2010-11

MEMORANDUM


To:  PDAD&C
From:
 Cheryl Misak, Vice President and Provost
Date:
 December 21, 2010
Re:
 Copyright and AUCC Draft Fair Dealing Guidelines



The University of Toronto's agreement with Access Copyright expires on December 31, 2010. The University, along with many other universities across Canada is engaged in a complex legal process before the Copyright Board regarding Access Copyright's new proposed tariff, which many universities and colleges, including the University of Toronto, are opposing.

In the interim, it remains very important for all faculty, students and staff to abide by all legal requirements under the Copyright Act when making copies, which include consent of the copyright owner unless the copying is within one of the exceptions specified in the Act, the most important being the "fair dealing" exception for purposes of research or private study. The University will be issuing guidelines as soon as possible in the new year that will assist in providing specific direction regarding the fair dealing requirements of the legislation. The Association of Universities and Colleges of Canada has issued the following template document that, with some adaptation for specific circumstances, provides useful interim guidance and will form the basis of the University of Toronto's directions regarding fair dealing.

AUCC Draft Fair Dealing Guidelines

I. Copying Guidelines

1. Except where otherwise stated, these guidelines apply to a university making a single copy from a work protected by copyright for the purposes of research, private study, review or criticism in circumstances in which the consent of the owner of copyright has not been secured and is not required by reason of the fair dealing exception in the Copyright Act. Permission from a copyright holder may be required where the copy falls outside of these guidelines.

2. Single copies that are permitted to be made pursuant to this policy must be made only from publications in which copyright subsists, such as, books, journals and other periodical publications, newspapers and magazines ("Published Works"). A copy may only be made from a lawful copy of the work in the possession of the university, and if the lawful copy is in electronic form, there is no restriction against making a copy under the contractual terms relating to the Published Work.

3. No copying may exceed 10 per cent of a Published Work, other than a textbook produced
primarily for the post secondary education market, or the following, whichever is greater:
a. an entire chapter from a book provided that it does not exceed 20 per cent of the book;
b. an entire article from a periodical publication;
c. an entire short story, play, poem or essay from a book or periodical publication;
d. an entire entry from an encyclopedia, dictionary, annotated bibliography or similar reference book;
e. an entire reproduction of an artistic work from a book or periodical publication; and
f. a single musical score from a book or periodical publication.

4. No copying may exceed 5 per cent of a textbook produced primarily for the post secondary education market, or the following, whichever is greater:
a. an entire chapter from a textbook provided that it does not exceed 10 per cent of the textbook;
b. an entire short story, play, poem or essay from the textbook provided that it does not exceed 10 per cent of the textbook; and
c. an entire reproduction of an artistic work or a single musical score from the textbook provided that it does not exceed 10 per cent of the textbook.

5. Notwithstanding any of the other provisions of these guidelines, no copies may be made of the following:
a. any of the works referred to in paragraphs 3(b) to 3(f) of these guidelines where the publication containing the work does not contain other works. For example, no copy may be made of a play from a publication containing the play but no other work;
b. unpublished works, subject to the provisions of paragraph 10 below;
c. proprietary workbooks, work cards, assignment sheets, tests and examination papers:
d. instruction manuals;
e. newsletters with restricted circulation intended to be restricted to a fee paying clientele; or
f. business cases which are made available for purchase.

6. Each paper copy made pursuant to these guidelines shall contain, on at least one page, the name of the author or artist (where known), the title of the publication from which the copy was made, the name of the publisher of that publication and the following statement:
This copy is made solely for the use by a student, staff member or faculty member for research, private study, review or criticism. Any other use may be an infringement of copyright if done without securing the permission of the copyright owner.

7. Each electronic copy made pursuant to these guideline shall have the information and statement referred to in paragraph 6 on at least one page, except for an electronic copy made available from a server pursuant to these guidelines, that information and statement could instead by associated with the copy such that notice of that information and statement would come to the attention of the person who accesses the copy.

8. If a fee is charged for making a copy the fee is set no more than an amount representing a reasonable approximation of the actual cost of making and delivering the copy.

9. University staff shall use reasonable efforts to guard against systematic, cumulative copying from the same work which in total exceeds the portion of the work that may be copied pursuant to these guidelines and to ensure that the number of copies made complies with this policy. If university staff suspects that a student, other staff member or faculty member is engaged in systematic, cumulative copying, the matter must be referred to the university staff member responsible for administering this policy or his or her delegate for review, and any further requests from that student, staff member or faculty member for a copy may be refused.

10. Requests for the making of copies which fall outside these copying guidelines and requests for making of copies of unpublished works may be referred to the university staff member responsible for administering this policy or to his or her delegate for evaluation. A determination will be made as to whether the proposed copies are permissible in all the circumstances relating to the requests and may ultimately be refused. The evaluation will examine all relevant circumstances, including:
a. the purpose of the proposed copying, including whether it is for research, private study, review or criticism;
b. the character of the proposed copying, including whether it involves single or multiple copies, and whether the copy is destroyed after it is used for its specific intended purpose;
c. the amount or proportion of the work which is proposed to be copied and the importance of that work;
d. alternatives to copying the work, including whether there is a non-copyrighted equivalent available;
e. the nature of the work, including whether it is published or unpublished; and
f. the effect of the copying on the work, including whether the copy will compete with the commercial market of the original work.

II. Interlibrary Loan

11. This policy on interlibrary loan applies to a loan from one university library in Canada at the request of another university library in Canada for delivery to that library or for transmission to a student, staff member or faculty member of that other university. This policy does not apply to a loan from a university library to a public or commercial library or to a library located outside of Canada. Depending on the circumstances surrounding the request for the loan, this policy may apply by analogy. Specific consideration of all the circumstances would have to be given to determine whether this policy would apply by analogy1.

Paper Copies

12. A single copy may be made onto paper pursuant to the Copying Guidelines for interlibrary loan subject to the following safeguards:
a. the library making the copy has previously received written confirmation in paper or electronic form from the library requesting the copy or from the patron of that library that the patron requires the copy for research, private study, review or criticism, and that the patron is a student, staff member or faculty member of the university requesting the copy; and
b. where the purpose of making the paper copy is to use it to make an electronic copy for use in interlibrary loan, the paper copy is promptly destroyed after the electronic copy is made.

1 This policy has been written to clarify fair dealing for access to university library resources. Fair dealing, of course, has wider application and is legitimately and reasonably called upon in other contexts and circumstances. While this particular policy does not specifically address all such circumstances it can, as noted in clause 12 of the policy, apply by analogy in certain situations. It is not unreasonable to expect for example that, subject to a consideration of the facts, fair dealing would apply in the context of an interlibrary loan request from a local public library to a university library.

Electronic Copies

13. A single copy may be made in electronic form pursuant to the Copying Guidelines for interlibrary loan and may be transmitted to the library requesting the copy using Ariel or similar technology subject to the following safeguards:
a. the library making the copy has previously received written confirmation in paper or electronic form from the library requesting the copy that the patron of that library requires the copy for research, private study, review or criticism, that the patron requiring the copy is a student, staff member or faculty member of the university requesting the copy, and that once that library received the electronic copy and makes a copy onto paper it will delete the electronic copy;
b. the library making the copy has received written acknowledgement from the library requesting the copy that it will only use the electronic copy transmitted to it for the purpose of making a copy onto paper for the patron of that library that required the copy and will delete the electronic copy once it has furnished the paper copy to its patron; and
c. the Ariel or similar technology used to transmit the copy is set or configured so that the copy is deleted once the transmission is completed.

14. A single copy may be made in electronic form pursuant to the Copying Guidelines for interlibrary loan and may be transmitted to a patron of the library requesting the copy in electronic form by desktop delivery subject to the following safeguards:
a. the library making the copy has previously received written confirmation in paper or electronic form from the library requesting the copy that the patron of that library is a student, staff member or faculty member of the university requesting the copy;
b. the library making the copy has, before transmitting the copy, received written confirmation in paper or electronic form from the patron of the library requesting the copy that the patron requires the copy for research, private study, review or criticism, that the patron will only use that copy for research, private study, review or criticism, and that the patron will not transmit the copy to any third party;
c. the electronic copy is made available to the patron requesting the copy either by email sent directly to the patron, or from a secure server protected by a technological protection measure that ensures that the copy is only made available to the patron requesting the copy;
d. the electronic copy is transmitted to the patron requesting the copy in PDF format or a similar format that restricts the copy from being altered by the patron; and
e. if transmitting the copy by email, the library deletes its sent email once the email has been transmitted, and if making the copy available from a secure server, the library deletes the copy stored on its server once the patron requesting the copy has downloaded one copy from the server and is not transmitted to another patron requesting a copy.

III. University Library Reserve

15. This policy on library reserve applies to reprographic copies made by the university library from Published Works for a student of the university.

Reprographic Copies

16. One reprographic copy for each 30 students in a course of instruction up to a maximum of 3 may be made onto paper pursuant to the Copying Guidelines for library reserve subject to the following safeguards:
a. the reprographic copies are made by or at the request of a faculty member in respect of a specific course of instruction offered by the university;
b. the reprographic copies are made as an optional and supplementary source of information for students and must be a small proportion (less than 25 per cent) of the required reading for a particular course, and the university library has received, from the faculty member requesting the copies, a written acknowledgement in paper or electronic form confirming that the copies are intended as an optional and supplementary source of information for students and that the copies amount to less than 25 per cent of the required reading for the course;
c. the use of library reserve must not substitute for the purchase of books, course packs or other published materials;
d. prior to loaning the reprographic copy to a student, the library receives from the student a written acknowledgement in paper or electronic form that he or she is a student enrolled in a course of instruction at the university, that the student requires the copy for research, private study, review or criticism, and that the student will not use the copy for any other purposes;
e. the reprographic copy is loaned to the student for a period of limited duration;
f. the reprographic copy is destroyed within a reasonable time once the course of instruction or series of courses it pertains to comes to an end; and
g. where the purpose of making the reprographic copy is to use it to make an electronic copy for library reserve, the reprographic copy is promptly destroyed after the electronic copy is made.

Electronic Copies

17. A single copy may be made in electronic form pursuant to the Copying Guidelines for library reserve and may be transmitted to a student from a university server subject to the following safeguards:
a. the electronic copy is made by or at the request of a faculty member in respect of a specific course of instruction offered by the university;
b. the electronic copy is made as an optional and supplementary source of information for students and must be a small proportion (less than 25 per cent) of the required reading for a particular course, and the university library has received, from the faculty member requesting the copies, written acknowledgement in paper or electronic form confirming that the copies are intended as an optional and supplementary source of information for students and that the copies amount to less than 25 per cent of the required reading for the course;
c. the use of library reserve must not substitute for the purchase of books, course packs or other published materials;
d. prior to providing a student with access to the electronic copy, the library receives from the student a written acknowledgement in paper or electronic form that he or she is a student enrolled in a course of instruction at the university, that the student requires the copy for research, private study, review or criticism, that the student will not use the copy for any other purpose, and that the student will not transmit the copy to any third party;
e. the electronic copy is made available to the student from a secure server protected by a technological protection measure that ensures that the copy is only made available to the student requesting the copy;
f. the electronic copy is transmitted to the student in PDF format or a similar format that prevents the copy from being altered by the student;
g. the electronic copy is only downloaded by the student once during the course of instruction for which the copy was made; and
h. the electronic copy made by the university is deleted once the course of instruction or the series of courses it pertains to has come to an end.

IV. Document Delivery

18. This policy on document delivery applies to copies made by the university library from Published Works for a patron of the library.

Paper Copies

19. A single copy may be made onto paper pursuant to the Copying Guidelines for document delivery for a patron of the university library who is a student, staff member or faculty member of the university subject to the following safeguards:
a. the library has received written confirmation in paper or electronic form from the patron that is a student, staff member or faculty member of the university, and that the patron requires the copy for research, private study, review or criticism; and
b. where the purpose of making the paper copy is to use it to make an electronic copy to provide to the patron, the paper copy is promptly destroyed after the electronic copy is made.

20. A single copy may be made onto paper pursuant to the Copying Guideline for document delivery, for a patron who is not a student, staff member or faculty member of the university subject to the following safeguards:
a. the library has permitted the patron to have access to its premises and the patron requests the copy while on the premises of the library; and
b. the library has received written confirmation in paper or electronic form from the patron that the patron requires the copy for research, private study, review or criticism.

Electronic Copy

21. A single copy may be made in electronic form pursuant to the Copying Guidelines for document delivery for a patron of the university library subject to the following safeguards:
a. the library has received written confirmation in paper or electronic form from the patron that the patron is a student, staff member or faculty member of the university, that the patron requires the copy for research, private study, review or criticism, that the patron will only use that copy for research, private study, review or criticism, and that the patron will not transmit the copy to any third party.
b. the electronic copy is made available to the patron requesting the copy either by email sent directly to the patron, or from a secure server protected by a technological protection measure that ensures that the copy is only made available to the patron requesting the copy;
c. the electronic copy is transmitted to the patron requesting the copy in PDF format or a similar format that restricts the copy from being altered by the patron; and
d. if transmitting the copy by email, the library deletes its sent email once the email has been transmitted, and if making the copy available from a secure server, the library deletes the copy stored on its server once the patron requesting the copy has downloaded one copy from the server.