This document describes Academic Wilds’ suggested practices in respect of copyrightable materials, as well as corresponding policies and administrative procedures. The objectives of this document are:
- to enable Academic Wilds to foster a free and creative environment for the purposes of sharing ideas, teaching and learning;
- to encourage Academic Wilds members to upload educational and other related material for educational purposes in a manner that respects the rights of original copyright holders;
- to inspire Academic Wilds members to be confident in their actions when dealing with copyrightable materials;
- to establish and make clear the procedures for handling copyright notices.
What is Copyright?
The word copyright literally means the right to copy. However, it is more accurately described as a bundle of rights that attach to an artistic or literary work. Unlike what the name implies, the owner of copyright does not necessarily possess the right to copy it, but rather he possesses the right to control how the work is handled by others. Most importantly, copyright gives the owner the control over who can copy, adapt or transmit the work.
What can be subject to Copyright?
The exact nature of copyright differs depending on the country you are in, but in most countries, just about anything can be subject to copyright, from books to plays to movies and music.
There are some basic requirements that a work must meet to be copyrightable. For starters, the work must be original and it must have involved some level of skill and judgment in its creation. In other words, a typed version of a handwritten note would not qualify since it is not original. Likewise, a compilation of several books into one volume would not qualify, either, since the author is not likely to have exercised much skill in making the compilation. However, if that compilation included annotations and comments, then the author of the complied work would be able to enjoy copyright not in the books themselves, but rather the compilation as a whole. The work must also be cable of being fixed in some tangible shape or form that is capable of perception, reproduction or communication. Since things like ideas cannot be fixed in a tangible form, they are not capable of being protected by copyright.
There are other exceptions, too. For example, inventions are governed my different sets of laws such as patent law and industrial design law, and these laws typically take exclusive jurisdiction over their subjects. Copyright protection extends beyond the protection from unauthorized copying of the original work. It extends to each copy of the work, whether or not that copy itself was authorized. Below are just a few examples of situations in which copyright may attach to a work, some obvious, some less obvious:
- Movies recorded onto DVDs or videocassettes, displayed in a theatre or downloaded from the internet
- The words and pictures found in books, newspapers, magazines, and other print media
- Music played over the radio, downloaded over the internet, or purchased in a store
- Music played by artists at a concert, recorded on a smart phone or other recording device
- Commercials and film trailers in an otherwise unprotected work
- A creative commons-licensed work that utilizes unauthorized copyright
On the other hand, a work that falls under one of the examples above might not be subject to copyright. Again, it depends on whether or not the work has met the criteria of original authorship and capability of fixation in a tangible medium.
What is Copyright Infringement and how can I avoid it?
When a copyrighted work is used in a way that is not authorized by the copyright holder, the holder’s copyright is said to have been infringed. Unauthorized use that may result in infringement includes copying, displaying, performing or distribution of the work. Uploading a copyrighted work to Academic Wilds could constitute the display and/or distribution of that work.
The best way to avoid copyright infringement is to only upload your own works, or works that you have permission from the author to use, display and/or distribute.
However, members may also use copyrighted content pursuant to the doctrines of fair use and/or fair dealing without the permission of the author (see below: Fair Use and Fair Dealing).
Fair Use and Fair Dealing
Not all unauthorized copying, distribution, displaying and other uses of copyrighted material is copyright infringement. Several unauthorized uses of copyright are considered fair under both US and Canadian copyright law. One commonly enjoyed use of copyrighted materials is for comment. Think of the quotes taken from books or movies and transposed into newspaper articles or online review sites. A portion of the original material may be legally reproduced for the purposes of comment, even though its reproduction was not authorized. Other uses include: parody, comment, satire, review, private research and importantly, education.
The purpose of the fair use doctrines of copyright law is to allow uses of copyrighted materials that advance the arts and sciences without adversely affecting the copyright holder’s interests. Accordingly, uses of copyrighted content for the purposes of education and research are strongly protected.
Unfortunately, there is no one-size-fits-all test. Whether or not a use of copyrighted content is fair use of that content will always depend on a number of factors. Some factors that may be considered are:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- The nature of the copyrighted work;
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole;
- The effect of the use upon the potential market for or value of the copyrighted work.
Under the first factor, the purpose and character of the use, an important consideration is whether the use is done for a personal profit. If it is not done for a profit, it is more likely to be fair. Another consideration is whether or not the use was transformative. For example, the sharing of an old examination paper complete with answers provided by the student is likely to be more transformative than simply sharing the blank exam.
Under the second factor, an important consideration is whether the work was published, that is, was it made available to the public. Logically, works that were never made available to the public are likely to be afforded more protection than those that were freely distributed. A work is published when it is distributed, transmitted or made available via download for a substantial number of people outside of a family’s social circle.
The third factor is an assessment of how much of the copyrighted work was used, and how much needed to be used to achieve the secondary purpose. An amount that is fair can range from just a few words in a book, to an entire work. The key to how much use is fair is that which is necessary for the desired purpose. By way of example, one does not need to copy Shakespeare’s entire play in order to make use of his words “to be or not to be”, and to do so would be unfair. Whereas on the other hand, use of an entire work might be required, such as in the case of making a thumbnail of a photo for web caching.
The fourth factor is a measurement of the effect that the secondary use has on the original copyright holder’s ability to exploit the work, financially or otherwise. For example, if both the original work and the secondary work are commercially sold, and the secondary work is purchased as a substitute for the original, then the balance is tipped against fair use. On the other hand, if the secondary work is not sold, but used for other purposes such as research, education or private study, then the balance is likely to be tipped in favor of fair use.
Using this sort of analysis, members are encouraged to determine for themselves whether or not the use of a work on the Academic Wilds website without the permission of the copyright holder constitutes a fair use.
If you are still unsure as to whether your work would constitute fair use, Academic Wilds suggests that the best course of action is to obtain permission from the copyright holder.
Copyright Holders’ Notice
Academic Wilds responds promptly to copyright holders' notices.
As a Canadian company, Academic Wilds only accepts copyright infringement complaints under the Copyright Act's notice-and-notice system. DMCA Takedown notices are not accepted.
If a valid notice is received, the allegedly infringing member will be notified. Access to the allegedly infringing content will NOT be disabled. The user's information will NOT be given out.
Academic Wilds encourages users who are subjected to this process to evaluate such notices with care, ensuring that the complainant has taken into consideration the possibilities of any fair uses of the allegedly infringing materials..
However, users that are found to repeatedly upload potentially infringing content may be suspended or permanently banned from Academic Wilds.
For more information on the procedure for notifying Academic Wilds of material that you believe to be infringing, please click here.