By Mark Swartz, Copyright Specialist
Understanding a few of the basic concepts behind Copyright law can help explain why some images can be used in certain situations and others cannot. The most useful concept to consider when thinking about how images can be used is balance.
A Balancing Act
In the landmark Supreme Court case Théberge v Galerie d’Art du Petit Champlain Inc, Justice Ian Binnie characterizes Copyright Law with the following statement:
The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator.
When you create a work, whether it is a book or an article, a photograph, a painting or any of the other types of expression covered by copyright (Copyright Act, RSC 1985, c C-42, s 5 retrieved on 2015-10-16), you automatically get a bundle of exclusive rights to that work. These rights include the right to copy, to distribute, and to assign your rights to others. The full sets of rights that you get are listed in the Act (Copyright Act, RSC 1985, c C-42, s 3 retrieved on 2015-10-16). And, while these rights are exclusive, they are limited in both time and scope. The balance between exclusive rights and limitations ensures that creators are fairly compensated for their work, while still allowing for some permission-free uses in ways that contribute to the public good.
Limitations to the exclusive rights of copyright holders include the following:
- Copyright protection does not last forever. In Canada, the general rule is that Copyright lasts for 50 years after the death of the copyright holder. After that point, the work will fall into the public domain and can be used for any purpose.
- The Copyright Act lists a number of situations where Copyrighted works can be used with permission from Copyright holders. These situations are called exceptions. The most well-known exception is called the fair dealing exception, which allows for some use of copyrighted material, as long as the use falls under one of the purposes listed in the Act, and if the dealing is fair (Copyright Act, RSC 1985, c C-42, s 29.1 retrieved on 2015-10-16).
If you have determined that you are using a copyright protected image, you need to get permission from the copyright holder or you must ensure that your use falls under one of the exceptions in the Copyright Act.
So what does this mean if I want to use images in my class?
There are a wide variety of exceptions that apply to the use of copyrighted images in a closed, educational setting like a classroom or a Learning Management System. In the classroom, there is an exception that permits the reproduction of copyrighted images for use in PowerPoint presentations on campus (Copyright Act, RSC 1985, c C-42, s 29.4 retrieved on 2015-10-16). Additionally, fair dealing and the publically available materials exception will allow for the inclusion of many images in PowerPoint slides uploaded to Learning Management Systems like MEdtech. For more information, please see the In the Classroom and the On the Internet sections of the copyright and teaching section of my website.
As for images used in student assignments and presentations, most of the images used by students are likely to fall under the fair dealing exception. I do, however, always recommend that students do their best to find copyright free (or suitably licensed) images, so that when students leave the university and are asked to use images in the workplace, they know how to find images that can be easily used without having to get permission. Suggestions for finding these types of images are available on the Resources page of the copyright and teaching section of my website.
What about using images in materials that I post to the open web? What about images in conference presentations, posters and in research projects?
When you move from a closed environment like a Learning Management System to an open environment, it becomes more difficult to rely on exceptions like fair dealing, particularly if you intend to use your work for commercial purposes at any point.
In these situations, I would avoid using copyright protected images without permission and instead rely on finding works that are either licensed through the Creative Commons or that are in the public domain. The “resources” link I included in the section above provides some resources for finding these types of images. Images used in conference presentations and posters are much more likely to be fair than those on the open web, but I would be careful posting these presentations and posters on conference websites.
Finally, most images used in research projects and theses are likely to be fair dealing. One complication is that if you are going to publish in a traditional journal or publication, it is likely that the publisher will require that you get permission for everything. Fair dealing is often perceived to be too much of a risk for these publishers, so, if you are going to go that route, make sure you find materials where permission can be granted easily or is not required.
This is just a brief overview outlining some of the main image-related considerations that you might come across as an instructor or researcher. If you have any further questions about the use of images, please get in touch with me at extension 78510 or at firstname.lastname@example.org.
Théberge v. Galerie d’Art du Petit Champlain inc.,  2 SCR 336, 2002 SCC 34 (CanLII), <http://canlii.ca/t/51tn> retrieved on 2015-10-16.
Copyright Act, RSC 1985, c C-42, s 29.1 <http://canlii.ca/t/52hd7> retrieved on 2015-10-16.