Just as it did around the world, the COVID-19 pandemic forced a radical transformation of post-secondary course content delivery in Canada. While the underlying challenges associated with the widespread migration of course content into an almost entirely online format are clearly not unique to Canadian educators, the specifics of Canadian copyright law imply a set of responses and practices that are, in fact, distinct from other national contexts. What follows is not a set of guidelines, recommendations, or legal advice. Rather, this article constitutes a brief overview of existing Canadian copyright law with respect to the use of audio-visual content in postsecondary educational settings, and highlights both the key challenges, as well as possibilities, that exist for educators of film and media studies in Canada, during the era of COVID-19.

As colleges and universities began suspending in-class activities in March 2020, film and media studies educators in the Film Studies Association of Canada formed an ad hoc committee specifically tasked with investigating the rights and limits of permissible practice according to the Copyright Act (1985)[1] Much of the initial work of this committee involved gathering reports from across the country regarding what instructors were being told by their respective institutions. Clear patterns began emerging. Perhaps unsurprisingly, instructors expressed a great deal of frustration regarding the limited range of options available to them for the online exhibition of audio-visual content for their courses. University and college copyright offices across the country were understandably cautious about how to best proceed with making AV content available to students, and often defaulted to conservative interpretations of copyright law. And librarians often found themselves caught in the middle—working hard to support instructors as they moved their courses online, but at the same time constrained by institutional limitations and policies.

In many cases, instructors were simply being told to make use of the existing titles licensed to universities through arrangements with streaming service providers. In Canada, the two primary non-theatrical feature film distribution companies are Criterion Pictures, which operates a streaming service called Criterion-on-Demand (neither of which should be confused with The Criterion Collection and/or The Criterion Channel); and Audio Ciné Films Inc., which likewise makes a portion of its catalog available via streaming. Additionally, many institutions pay for access to Kanopy, the global on-demand streaming platform designed primarily for universities and libraries. Many cash-strapped institutions have been unable or reluctant to purchase access to these collections. And Kanopy’s expensive “per title,” rather than “per collection” pricing model has been well documented.[2] Furthermore, with the exception of Kanopy, the collections of these services tend to skew popular and mainstream. For certain film studies course offerings, they are extremely valuable resources. However, these holdings are simply not designed to meet the full range of content required of a comprehensive university or college-level film curriculum. An instructor, for instance, teaching a course on cinemas of the Global South, or post-war experimental filmmaking, would face an insurmountable challenge curating an acceptable lineup of films drawn solely from these collections. Of primary concern, in this respect, are meeting commitments to Equity, Diversity, and Inclusion (EDI). Many post-secondary institutions across Canada (as elsewhere) have made formalized commitments to such principles, with the purpose of decolonizing and diversifying disciplinary curricula. Relying solely on the collections of a handful of licenced streaming services to provide the entirety of moving image content for all film studies courses at a given institution would significantly undermine any such commitments to EDI, not to mention the best educational experiences for enrolled students. Instructors, after all, simply wish to be allowed to teach the same content that they would teach in a traditional brick-and-mortar classroom—content that they would under normal circumstances have every right to legally screen, provided the copy was legitimately obtained.

Over the ensuing months since that initial online migration, a gradual consensus, if not a fully unanimous one, has emerged, as Canadian educational institutions have consulted with each other, and revised their practices and policies. This all, of course, hinges on what is delineated in the Canadian Copyright Act. Copyright legislation in Canada sets out to ensure a reasonable balance between the rights of content creators on one hand, and the rights of users and consumers of that content through what’s known as Fair Dealing. Fair Dealing is roughly equivalent to the notion of “Fair Use” found in American copyright law, as both are effectively enshrined “users’ rights” that allow for the reproduction and use of copyrighted materials, under certain circumstances. Though differences certainly exist, legal scholars in Canada have noted over the past few decades the general alignment of copyright law and rulings with existing copyright law in the United States.[3] Crucially, “education” was added as a category to Fair Dealing in 2012 through the Copyright Modernization Act, with the intent to: “allow educators and students to make greater use of copyright material.”[4]

Educators in Canada, therefore, benefit from the provisions accorded to them in the Copyright Act, most notably under Fair Dealing (section 29), as well as the subsequent exemptions for Educational Institutions, Section 29.4 “Reproduction for Instruction,” and Section 29.5 “Performances.”[5] Through these provisions, the exhibition of both legitimately obtained copyrighted material, as well as reproductions (made under certain conditions) of that same material are permissible, but only under very specific circumstances. Section 29.5 permits the “performance in public of a cinematographic work, as long as the work is not an infringing copy,” if that performance is held “on the premises of an educational institution for educational or training purposes and not for profit, before an audience consisting primarily of students of the educational institution.”[6] Though few should question this during an era in which virtually all class activity is occurring in an online environment, it’s important to note that the Act makes it clear, in Section 30.01(3) “Communication by telecommunication” and in Section 30.01(4) “Participation by telecommunication” that such online learning environments are in fact, considered to occur “on the premises” of that educational institution.[7]

Complications arise, however, when determining whether or not a digital reproduction of copyrighted material constitutes an “infringing copy.” In many ways, this particular issue has been the major stumbling block for institutions in Canada. The live-streaming of a legitimate DVD, for instance, does not appear to pose any copyright problems, as long as it is only shown to a class of students, and done so through password-protected university online infrastructure. A copy of that DVD, however, made available to stream asynchronously to students, even through that same password-protected university platform, appears to be a more contested issue, with the crucial distinction being tied to the circumvention of an “access control” technological protection measure (TPM). US copyright law clearly demarks exemptions for the circumvention of TPMs for educational purposes, in specific circumstances.[8] Canadian copyright law, however, to the objections of many, is far less lenient on this issue. Section, 41.1 (1) “Prohibition” clearly prohibits the “circumvention of a technological protection measure” in instances where that TPM “controls access to a work.”[9] This refers to one variety of TPMs, known as “access control.” With respect to moving images, this is what is known in common parlance as “ripping” a DVD or Blu-ray. “Copy control” TPMs, however, which in the language of the law “restrict the doing,” or what is done with the copy, are not however, as explicitly prohibited in educational contexts.[10] Section 29.4 (1) “Reproduction for Instruction” states “it is not an infringement of copyright for an educational institution...for the purposes of education or training on its premises to reproduce a work, or do any other necessary act, in order to display it.”[11] There is a strong tension, in other words, present in the Act, between the allowances of Fair Dealing and exemptions for education, and the prohibitions around access control TPMs. Accordingly, given the language of the Copyright Act, Canadian educational institutions have been reluctant to embrace the practice of circumventing access control TPMs, and a more palatable alternative to making digital copies has been adopted by some instead.

Screen capture software and technology allows for the reproduction of DVD and Blu-ray content without breaking the encoding of an access control TPM. A licensed computer DVD player, for instance, legally decrypts the encoding on the disk as it plays. Screen capture software (such as OBS Studio) can then create a copy of that legally decrypted content as it plays in real time, in a way that does not circumvent access control TPM, apparently in keeping with the language of section 29(4) and section 41(1). In class situations where no licensed version of a film is reasonably attainable for streaming, a growing number of Canadian educational institutions have allowed this practice. Typically in these cases, the standard protocols apply: the content is only made available through password protected, course infrastructure; the content is delivered in a way to prevent to every extent possible, downloading by students; the content is removed upon completion of the course; the necessary copyright language is provided to students regarding its intended use, etc. However, while screen capture appears a more legally sound option—or at least, a more legally unambiguous option—it is often frustrating for instructors. It is a more labor-intensive practice, for one, and the audio and visual quality often suffer considerably in the transfer, in comparison to the quality of digital copies created via the circumvention of access control TPMs. In courses with a specific eye towards aesthetics, for instance, this can be particularly disadvantageous, where hazy focus and muffled sound could seriously compromise the educational value of the lesson. In fact, in the American exemptions for the circumvention of TPMs, achieving a “required level of high-quality content” is even singled out in the language of the exemption.[12]

A further complicating issue stems from the Canadian Copyright Act’s follow-up to the exemption in 29.4 (1) regarding the legality of reproducing a work, wherein it stipulates that this does not apply if a work is deemed “commercially available.”[13] The act defines “commercially available” as “(a) available on the Canadian market within a reasonable time and for a reasonable price and may be located with reasonable effort,” or; “(b) for which a licence to reproduce, perform in public or communicate to the public by telecommunication is available from a collective society within a reasonable time and for a reasonable price and may be located with reasonable effort.”[14] Clearly, those passages leave considerable room for interpretation, notably in terms of what precisely would be considered “reasonable” in any of those listed scenarios. Furthermore, no court rulings to date have established clarity on this issue.This is yet another factor which has contributed to the confused circumstances involved in determining the limits of acceptable, legal practice with respect to AV content and the law.

Of course, obtaining licensed material that has been professionally digitized for streaming is typically the ideal outcome for all parties involved: educational institutions, holders and creators of content, instructors, and students themselves. However, due to the complicated nature of rights, and of the limited holdings of available streaming services, this ideal scenario is simply not always attainable. An insistence on this model represents a considerable threat to the pedagogical integrity of the disciplines of Film and Media Studies, particularly in terms of meeting the aspirations of Equity, Diversity, and Inclusion policies. While COVID-19 has necessitated a massive transition to online teaching, this format of instruction existed prior to the global pandemic, and will surely continue in various capacities once the crisis has receded. While current Canadian copyright law allows for a considerable range of rights for educators of film and media studies, further clarity on the precise relationship between Fair Dealing and TPM circumvention, and by extension—and if needed—an accompanying loosening of those restrictions to situate them more in line with copyright legislation in the United States, would go a long way to ensuring a more robust online educational environment for students, a curriculum more attuned to the principles of Equity, Diversity, and Inclusion, and an experience that more closely replicates what would transpire in a conventional classroom.

I would like to extend my thanks to Lisa Macklem, Samuel E. Trosow, Marc Furstenau, and to the FSAC ad hoc committee on online screening.

Peter Lester is an Associate Professor in the Department of Communication, Popular Culture and Film at Brock University. His work has appeared in such journals as the Journal of Cinema and Media Studies, The Moving Image, the Quarterly Review of Film and Video, and Film History. He is a Past President of the Film Studies Association of Canada.

    1. Thank you to the following individuals for their contributions to this committee: Janelle Blankenship, Liz Clarke, Wendy Donnan, Jennifer Hosek, Daniel Keyes, Brenda Longfellow, Susan Lord, Owen Lyons, Kate Rennebohm, Haidee Wasson, Steven Woodward, and Michael Zryd.

    2. Chris Cagle, “Kanopy: Not Just like Netflix, and Not Free,” Film Quarterly “Quorum,” May 3, 2019. https://filmquarterly.org/2019/05/03/kanopy-not-just-like-netflix-and-not-free/

    3. Samuel E. Trosow and Lisa Macklem, “What is Fair Dealing in Copyright? Here’s Why it Matters When Moving Classes Online Due to Coronavirus,” The Conversation, April 28, 2020, https://theconversation.com/what-is-fair-dealing-in-copyright-heres-why-it-matters-when-moving-classes-online-due-to-coronavirus-134510.

    4. Bill C-11, Copyright Modernization Act, S.C. 2012, c. 20. https://laws-lois.justice.gc.ca/eng/annualstatutes/2012_20/fulltext.html

    5. Copyright Act, 2012, R.S.C. 1985, c. C-42. https://laws-lois.justice.gc.ca/eng/acts/C-42/page-8.html#docCont

    6. Copyright Act, 2012, R.S.C. 1985, c. C-42. https://laws-lois.justice.gc.ca/eng/acts/C-42/page-8.html#docCont

    7. Copyright Act, 2012, R.S.C. 1985, c. C-42. https://laws-lois.justice.gc.ca/eng/acts/C-42/page-10.html#docCont

    8. Code of Federal Regulations, §201.40, Exemptions to Prohibition Against Circumvention, https://www.copyright.gov/title37/201/37cfr201-40.html

    9. Copyright Act, 2012, R.S.C. 1985, c. C-42. https://laws-lois.justice.gc.ca/eng/acts/C-42/page-18.html#h-104106

    10. Copyright Act, 2012, R.S.C. 1985, c. C-42. https://laws-lois.justice.gc.ca/eng/acts/C-42/page-18.html#h-104106

    11. Copyright Act, 2012, R.S.C. 1985, c. C-42. https://laws-lois.justice.gc.ca/eng/acts/C-42/page-18.html#h-104106

    12. Code of Federal Regulations §201.40, Exemptions to Prohibition Against Circumvention, https://www.copyright.gov/title37/201/37cfr201-40.html

    13. Copyright Act, 2012, R.S.C. 1985, c. C-42. https://laws-lois.justice.gc.ca/eng/acts/C-42/page-9.html#h-103366

    14. Copyright Act, R.S.C. 1985, c. C-42. https://laws-lois.justice.gc.ca/eng/acts/C-42/page-1.html#h-102551