Relevant Legislation

Relevant Legislation for Scholars Portal #

1. Policy Statement #

Scholars Portal will comply with any provincial and federal legislation that is relevant to its operations, and actively monitors national and provincial legislation to ensure that it is aware of all relevant legislation.

2. Copyright Act (R.S., 1985, c. C-42) – Last amended on July 1, 2020 #

2.1 Provisions made for Fair Dealing in research, private study, etc: #

29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

R.S., 1985, c. C-42, s. 29; R.S., 1985, c. 10 (4th Supp.), s.7; 1994, c. 47, s. 61; 1997, c. 24, s. 18; 2012, c. 20., s. 21.

2.2 Provisions made for Fair Dealing in criticism or review: #

29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:

  • (a) the source; and
  • (b) if given in the source, the name of the
    • i. author, in the case of a work,
    • ii. performer, in the case of a performer’s performance,
    • iii. maker, in the case of a sound recording, or
    • iv. broadcaster, in the case of a communication signal.

1997, c. 24, s. 18.

2.3 Provisions made for Libraries, Archives and Museums in management and maintenance of collection: #

30.1 (1) It is not an infringement of copyright for a library, archive or museum or a person acting under the authority of a library, archive or museum to make, for the maintenance or management of its permanent collection or the permanent collection of another library, archive or museum, a copy of a work or other subject-matter, whether published or unpublished, in its permanent collection

  • (a) if the original is rare or unpublished and is
    • (i) deteriorating, damaged or lost, or
    • (ii) at risk of deterioration or becoming damaged or lost;
  • (b) for the purposes of on-site consultation if the original cannot be viewed, handled or listened to because of its condition or because of the atmospheric conditions in which it must be kept;
  • (c) in an alternative format if the library, archive or museum or a person acting under the authority of the library, archive or museum considers that the original is currently in a format that is obsolete or is becoming obsolete, or that the technology required to use the original is unavailable or is becoming unavailable;
  • (d) for the purposes of internal record-keeping and cataloguing;
  • (e) for insurance purposes or police investigations;or
  • (f) if necessary for restoration.

Limitation

(2) Paragraphs (1)(a) to (c) do not apply where an appropriate copy is commercially available in a medium and of a quality that is appropriate for the purposes of subsection (1).

Destruction of intermediate copies

(3) If a person must make an intermediate copy in order to make a copy under subsection (1), the person must destroy the intermediate copy as soon as it is no longer needed.

1997, c. 24, s. 18; 1999, c. 31, s. 59(E); 2012, c. 20, s. 28.

2.4. Provisions made for Libraries, Archives and Museums in research or private study: #

30.2 (1) It is not an infringement of copyright for a library, archive or museum or a person acting under its authority to do anything on behalf of any person that the person may do personally under section 29 or 29.1.

Copies for articles for research, etc.

(2) It is not an infringement of copyright for a library, archive or museum or a person acting under the authority of a library, archive or museum to make, by reprographic reproduction, for any person requesting to use the copy for research or private study, a copy of a work that is, or that is contained in, an article published in

  • (a) a scholarly, scientific or technical periodical; or
  • (b) a newspaper or periodical, other than a scholarly, scientific or technical periodical, if the newspaper or periodical was published more than one year before the copy is made.

Restriction

(3) Paragraph (2)(b) does not apply in respect of a work of fiction or poetry or a dramatic or musical work.

Limitation regarding copies in digital form

(5.02) A library, archive or museum, or a person acting under the authority of one, may, under subsection (5), provide a copy in digital form to a person who has requested it through another library, archive or museum if the providing library, archive or museum or person takes measures to prevent the person who has requested it from

  • (a) making any reproduction of the digital copy, including any paper copies, other than printing one copy of it;
  • (b) communicating the digital copy to any other person; and
  • (c) using the digital copy for more than five business days from the day on which the person first uses it.

1997, c. 24, s. 18; 2012, c. 20, s. 29.

2.5 Provisions made for Libraries, Archives and Museums in copying of deposited works in an archive: #

30.21 (1) It is not an infringement of copyright for an archive to make a copy, in accordance with subsection
(3), of an unpublished work that is deposited in the archive.

Notice

(2) When a person deposits a work in an archive, the archive must give the person notice that it may copy the work in accordance with this section.

Conditions for copying of works

(3) The archive may only copy the work if

  • (a) the person who deposited the work, if a copyright owner, did not, at the time the work was deposited, prohibit its copying;
  • (b) copying has not been prohibited by any other owner of copyright in the work; and
  • (c) the archive is satisfied that the person for whom it is made will use the copy only for purposes of research or private study and makes only one copy for that person.

Conditions for providing copy

(3.1) The archive may provide the person for whom a copy is made under subsection (1) with the copy only on the condition that

  • (a) the person is provided with a single copy of the work; and
  • (b) the archive informs the person that the copy is to be used solely for research or private study and that any use of the copy for a purpose other than research or private study may require the authorization of the copyright owner of the work in question.

1997, c. 24, s. 18; 1999, c. 31, s. 60(E); 2004, c. 11, s. 21; 2012, c. 20, s. 30.

2.6 Provisions made for Libraries, Archives and Museums within Educational Institutions #

Marginal note: Application to libraries, etc. within educational institutions

30.4 For greater certainty, the exceptions to infringement of copyright provided for under sections 29.4 to 30.3 and 45 also apply in respect of a library, archive or museum that forms part of an educational institution. 1997, c. 24, s. 18

2.7 Technological Protection Measures and Rights Management Information #

Definition

41. The following definitions apply in this section and in sections 41.1 to 41.21.

circumvent means:

  • (a) in respect of a technological protection measure within the meaning of paragraph (a) of the definition technological protection measure, to descramble a scrambled work or decrypt an encrypted work or to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure, unless it is done with the authority of the copyright owner; and

  • (b) in respect of a technological protection measure within the meaning of paragraph (b) of the definition technological protection measure, to avoid, bypass, remove, deactivate or impair the technological protection measure (contourner)

technological protection measure means: any effective technology, device or component that, in the ordinary course of its operation,

  • (a) controls access to a work, to a performer’s performance fixed in a sound recording or to a sound recording and whose use is authorized by the copyright owner.

R.S., 1985, c. C-42, s. 41R.S., 1985, c. 10 (4th Supp.), s. 91997, c. 24, s. 222012, c. 20, s. 47.

Prohibition

41.1 (1) No person shall

  • (a) circumvent a technological protection measure within the meaning of paragraph (a) of the definition technological protection measure in section 41;

2012, c. 20, s. 47.

3. Exceptions for Educational Institutions, Libraries, Archives and Museums Regulations (SOR/99-325) – Last amended on May 15, 2008 #

3.1 Provisions made for records kept under section 30.2 of the Act #

3. In respect of activities undertaken by a library, an archive or a museum under subsection 30.2(1) of the Act, section 4 applies only to the reproduction of works.

4. (1) Subject to subsection (2), a library, an archive or a museum, or a person acting under the authority of one, shall record the following information with respect to a copy of a work that is made under section 30.2 of the Act:

  • (a) the name of the library, archive or museum making the copy;
  • (b) if the request for a copy is made by a library, archive or museum on behalf of a person who is a patron of the library, archive or museum, the name of the library, archive or museum making the request;
  • (c) the date of the request; and
  • (d) information that is sufficient to identify the work, such as
    • (i) the title,
    • (ii) the International Standard Book Number,
    • (iii) the International Standard Serial Number,
    • (iv) the name of the newspaper, the periodical or the scholarly, scientific or technical periodical in which the work is found, if the work was published in a newspaper, a periodical or a scholarly, scientific or technical periodical,
    • (v) the date or volume and number of the newspaper or periodical, if the work was published in a newspaper or periodical,
    • (vi) the date or volume and number of the scholarly, scientific or technical periodical, if the work was published in a scholarly, scientific or technical periodical, and
    • (vii) the numbers of the copied pages.

(2) A library, an archive or a museum, or a person acting under the authority of one, does not have to record the information referred to in subsection (1) if the copy of the work is made under subsection 30.2(1) of the Act after December 31, 2003.

(3) A library, an archive or a museum, or a person acting under the authority of one, shall keep the information referred to in subsection (1)

  • (a) by retaining the copy request form; or
  • (b) in any other manner that is capable of reproducing the information in intelligible written form within a reasonable time.

(4) A library, an archive or a museum, or a person acting under the authority of one, shall keep the information referred to in subsection (1) with respect to copies made of a work for at least three years.

(5) A library, an archive or a museum, or a person acting under the authority of one, shall make the information referred to in subsection (1), with respect to copies made of a work, available once a year to one of the following persons, on request made by the person in accordance with subsection (7):

  • (a) the owner of copyright in the work;
  • (b) the representative of the owner of copyright in the work; or
  • (c) a collective society that is authorized by the owner of copyright in the work to grant licences on their behalf.

(6) A library, an archive or a museum, or a person acting under the authority of one, shall make the information referred to in subsection (1) available to the person making the request, within 28 days after the receipt of the request or any longer period that may be agreed to by both of them.

(7) A request referred to in subsection (5) must be made in writing, indicate the name of the author of the work and the title of the work, and be signed by the person making the request and include a statement by that person indicating that the request is made under paragraph (5)(a), (b) or (c).

4. Recent Reports, Court Rulings, and Legislative Amendments #

Many of the copyright issues identified in this section (fair dealing in postsecondary institutions, circumvention of digital lock regulations or TPMs for preservation work in archives and libraries, and the implementation of the new general copyright term) will be of interest to Scholars Portal moving forward and will be actively monitored.

4.1 The Report of the Standing Committee on Industry, Science, and Technology – published June, 2019 #

In June 2019, the Standing Committee on Industry, Science, and Technology published a report featuring a series of recommendations designed to guide any future amendments to the current iteration of the Copyright Act. It was the first statutory review of the Copyright Act since the adoption of the Copyright Modernization Act (formerly Bill C-11) in 2012. The Report included the following recommendations that pertain to fair dealing in the educational sector and Technological Protection Measures (TPMs):

Recommendation 16 That the Government of Canada consider establishing facilitation between the educational sector and the copyright collectives to build consensus towards the future of educational fair dealing in Canada.

Recommendation 17 That the House of Commons Standing Committee on Industry, Science and Technology resume its review of the implementation of educational fair dealing in the Canadian educational sector within three years, based on new and authoritative information as well as new legal developments.

Recommendation 19 That the Government of Canada examine measures to modernize copyright policy with digital technologies affecting Canadians and Canadian institutions, including the relevance of technological protection measures within copyright law, notably to facilitate the maintenance, repair or adaptation of a lawfully acquired device for non-infringing purposes.

4.2 Ruling of Note: Access Copyright v. York University Copyright Ruling – July 30, 2021 #

The unanimous Supreme Court ruling in Access Copyright v. York University stated that copyright tariffs are not mandatory for postsecondary institutions that do not want to have license agreements with Access Copyright, a non-profit organization that manages royalties for Canadian authors, upholding a previous ruling from the Federal Court of Appeals. Although the Supreme Court chose not to provide a judgement on York University’s guidelines on fair dealing, it stated that it did not endorse previous decisions from the Federal Court and the Federal Court of Appeals which ruled against York University’s fair dealing guidelines. The unanimous ruling in favour of York University in Access Copyright v. York University affords postsecondary institutions the legal precedent to consider extending or expanding their use of educational fair dealing in copyright-related issues.

4.3 Bill C-4, An Act to implement the Agreement between Canada, the United States of America and the United Mexican States – Received Royal Assent on March 13, 2020. #

On 30 November 2018, Canada, the United States, and Mexico signed the Canada-United States-Mexico Agreement (CUSMA) on free trade. On July 1, 2020, CUSMA entered into force. To comply with CUSMA, Canada had to adapt certain aspects of its current copyright laws to better correspond with those of Mexico and the United States. The most significant change to current Canadian copyright law is Canada’s commitment to extending the “general term” of copyright protection from 50 to 70 years after the death of the author of the work. For performances and sound recordings, the “general term” in Canada has been extended from 70 years to 75 years. Canada’s transition period for implementing the new general term lasts until December 31, 2022.

5. Accessibility for Ontarians with Disabilities Act, 2005. (O. Reg 429/07) – Last Amended in 2016 #

5.1 Provisions made for improved long-term accessibility standards in a particular industry or organization: #

  • 9.(2) Promptly after its establishment, each standards development committee shall determine the long-term accessibility objectives for the industry, sector of the economy or class of persons or organizations in relation to which the committee has responsibilities under subsection 8 (2), by identifying the measures, policies, practices and requirements that it believes should be implemented by the members of the industry, sector or class on or before January 1, 2025. 2005, c. 11, s. 9 (2).

5.2 Provisions made for transformation or modification of long-term accessibility standards: #

  • 9. (9) Within five years after an accessibility standard is adopted by regulation or at such earlier time as the Minister may specify, the standards development committee responsible for the industry, sector of the economy or class of persons or organizations to which the standard applies shall,
  • (a) re-examine the long-term accessibility objectives determined under subsection (2);
  • (b) if required, revise the measures, policies, practices and requirements to be implemented on or before January 1, 2025 and the time-frame for their implementation;
  • (c) develop another proposed accessibility standard containing such additions or modifications to the existing accessibility standard as the standards development committee deems advisable and submit it to the Minister for the purposes of making the proposed standard public and receiving comments in accordance with section 10; and
  • (d) make such changes it considers advisable to the proposed accessibility standard developed under clause (c) based on the comments received under section 10 and provide the Minister with the subsequent proposed accessibility standard. 2005, c. 11, s. 9 (9).

Review Cycle #

Regular