Background

The Superintendent requires that all staff members respect intellectual property and respect the provisions contained within the Copyright Act. The fair dealing provision in the Copyright Act permits use of a copyright-protected work without permission from the copyright owner or the payment of copyright royalties. The following guidelines apply fair dealing in K–12 schools and provide reasonable safeguards for the owners of copyright-protected works in accordance with the Copyright Act and the Supreme Court decisions. 

Procedures

1. To qualify for fair dealing, two (2) tests must be passed.
   1. First Test: the “dealing” must be for a purpose stated in the Copyright Act: research, private study, criticism, review, news reporting, education, satire, and parody. Educational use of a copyright-protected work passes the first test. 
   2. Second Test: the dealing must be “fair.” In landmark decisions in 2004 and 2012, the Supreme Court of Canada provided guidance as to what this test means in schools.
2. Fair Dealing Guidelines
   1. Teachers and staff members may communicate and reproduce, in paper or electronic form, short excerpts from a copyright-protected work for the purposes of research, private study, criticism, review, news reporting, education, satire, and parody.
   2. Copying or communicating short excerpts from a copyright-protected work under these Fair Dealing Guidelines for the purpose of news reporting, criticism, or review is to mention the source and, if given in the source, the name of the author or creator of the work. 
   3. A single copy of a short excerpt from a copyright-protected work may be provided or communicated to each student enrolled in a class or course:
      1. As a class handout;
      2. As a posting to a learning- or course-management system that is password protected or otherwise restricted to students;
      3. As part of a course pack.
   4. A short excerpt means:
      1. Up to ten percent (10%) of a copyright-protected work (including a literary work, musical score, sound recording, and an audiovisual work);
      2. One (1) chapter from a book;
      3. A single article from a periodical;
      4. An entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart, and plan) from a copyright-protected work containing other artistic works;
      5. An entire newspaper article or page;
      6. An entire single poem or musical score from a copyright-protected work containing other poems or musical scores;
      7. An entire entry from an encyclopedia, annotated bibliography, dictionary, or similar reference work.
   5. Copying or communicating multiple short excerpts from the same copyright-protected work with the intention of copying or communicating substantially the entire work is prohibited.
   6. Copying or communicating that exceeds the limits in these Fair Dealing Guidelines will be referred to a supervisor or other person designated by the Superintendent for evaluation. An evaluation of whether the proposed copying or communication is permitted under fair dealing will be made based on all relevant circumstances.
   7. Any fee charged by the Division for communicating or copying a short excerpt from a copyright-protected work must be intended to cover only the costs of the Division, including overhead costs.
3. Posters outlining the Fair Dealing Guidelines shall be provided by the Secretary-Treasurer and are to be posted above each multi-function or photocopying device.
4. The Copyright Act permits showing an audiovisual work such as a DVD or video on the premises of an educational institution provided the following five conditions are met:
   1. The showing must take place on the premises of an educational institution.
   2. The showing must be for an audience consisting primarily of students, instructors, or persons directly responsible for setting a curriculum.
   3. The showing must be for educational or training purposes.
   4. The showing must not be for profit.
   5. The copy shown must not be infringing or the person responsible for the performance has no reasonable grounds to believe that it is an infringing copy. 
5. Streaming services such as Netflix, Prime, and Disney+ as examples are governed by separate terms of service agreements. Unanimously, these agreements specify that such services are for personal use only.  They cannot be used in the classroom for educational or entertainment purposes, regardless of whether or not the video shown is available through our public performance license.
6. The Copyright Act permits sound recordings, televisions, and radios in the classroom, subject to all of the following conditions:
   1. It must take place on the premises of an educational institution;
   2. It must be for educational or training purposes;
   3. It must not be for profit;
   4. It must take place before an audience consisting primarily of students of the educational institution, persons acting under its authority, or any person who is directly responsible for setting a curriculum for the educational institution; and
   5. It must not involve a “motive of gain.”
7. This user’s right does not apply to recorded radio and television programs, but only to playing radio and television programs while they are being transmitted (by over-the-air broadcast, cable, satellite, or over the internet).
8. Where music is performed for a non-educational objective, SOCAN and Re: Sound tariffs apply.  Examples that require royalty payments include music performed for extracurricular activities, such as an assembly, background music, a school dance, a fashion show, and/or graduation entrance song. Current statements of applicable fees can be found on the SOCAN website at https://www.socan.com/ and on the RE: Sound website at https://www.resound.ca/
9. Teachers, staff, and students may save, download, and share publicly available Internet materials, as well as use that material in the classroom and communicate it to students or others within their education circle. “Publicly available” materials are those posted online by content creators and copyright owners without any technological protection measures, such as a password, encryption system, or similar technology intended to limit access or distribution, and without a clearly visible notice prohibiting educational use. Routine classroom uses may be made of publicly available Internet materials, such as incorporating online text or images into homework assignments, performing music or plays online for peers, exchanging materials with teachers or peers, or reposting a work on a restricted access course Web site. To encourage copyright awareness and respect in all circumstances, students and educators are required to cite the source of the Internet materials they use.
10. Use of copyrighted materials that do not fall under the Fair Dealing Guidelines is not permitted without the approval of the Superintendent or designate. Where school staff or students wish to use copyrighted materials, they must:
    1. Obtain permission to copy from the copyright holder; and
    2. Where requested, a royalty must be paid to the copyright holder. 
11. All staff and students who are expected to use copyrighted materials must be aware of the procedures and the guidelines for fair dealing. Teachers are to have knowledge of and be familiar with Fair Dealing Decision Tool and “Copyright Matters!” available at CMEC Copyright.
12. Questions raised by a Third Party regarding copyright infringement must be referred immediately to the Superintendent or designate.