Copyright Information for Faculty

The information on this page is intended for Queen's faculty and addresses the following: 

- What Copyright is and How it Works, 

- What Fair Dealing is and How it Works,  

- Principles of Media Neutrality, Technological Neutrality, and Functional Equivalence, 

- Copyright Considerations for the 4 Stages of Generative AI: Training, Input, Analysis, and Output, 

- Copyright Considerations for Stage 1 of Generative AI: Training, 

- Copyright Considerations for Stage 2 of Generative AI: Input, 

- Copyright Considerations for Stage 3 of Generative AI: Analysis, 

- Copyright Considerations for Stage 4 of Generative AI: Output, and 

- Best Practices for Faculty. 

The information on this page seeks to address the current relationship between copyright and artificial intelligence. In the absence of Canadian laws and regulations to address the development, implementation, and use of artificial intelligence tools and products, and while lawsuits between copyright owners and developers of artificial intelligence tools and products continue to be launched and decisions from the courts are pending, the popularity of and interest in artificial intelligence tools and products continue to expand. As such, we find ourselves in a position where we need to consider best practices that we can adopt now and adapt when it's appropriate to do so. The information on this page considers the possible copyright-related legalities and legal issues that artificial intelligence tools and products present, suggests best practices for Queen's faculty to consider, and will be updated as necessary to reflect the introduction of any legislation and regulations as well as decisions from the courts.

Information about copyright and artificial intelligence for students, researchers, and staff is available in our guides: 

Copyright Information for Students (coming soon)

Copyright Information for Researchers (coming soon) 

Copyright Information for Staff (coming soon) 

If you have any questions about copyright and artificial intelligence or need assistance, please contact Meaghan Shannon, Copyright Librarian: meaghan.shannon@queensu.ca. 

Copyright protects artistic, dramatic, literary, and musical works as well as performers' performances, sound recordings, and communication signals. This encompasses a wide range of content, from books, articles, posters and artwork, textbooks and manuals, figures and maps, songs and musical scores, films and documentaries, to software, databases, and websites. In order for a work to be protected by copyright, it must be original and it must be fixed in a format (ie a written article or recorded song). Copyright protection will not apply to facts or ideas but it will apply to the expression of them. 

Copyright grants economic rights and moral rights to authors or works. The economic rights allow authors and copyright owners to exploit the economic value and potential of their works by controlling or restricting whether their works are reproduced, distributed, communicated (ie shared online, transmitted through email, or broadcast via telecommunication channels), performed, exhibited, or translated/adapted. Authors and copyright owners also have the right to authorize any individual to exercise any of their economic rights on their behalf - this is why permission must be obtained from an author or copyright owner if the use of a work is not permitted in accordance with an exception in the Copyright Act, including fair dealing, or an existing license agreement. The exceptions in the Copyright Act are intended to balance an author's or copyright owner's economic rights and copyright interests with the public's interest in using works for specific purposes under specific conditions. It is important to note that authors can transfer their economic rights to other individuals or entities (ie publishers) which is why authors and copyright owners can be either the same or different individuals or entities. 

Moral rights are also conferred upon authors of works. The moral rights allow authors to protect the integrity of their work, their reputations in association with their work, and their entitlement to be acknowledged or remain anonymous whenever their work is used. It is important to note that authors can waive their moral rights but the moral rights cannot be transferred to other individuals or entities. Even if the economic rights to a work have been transferred, the moral rights will remain with the author of that work if they have not been waived. 

Upon creation, a work is automatically protected by copyright and the term of copyright protection generally lasts for the duration of the author's lifetime and for 70 years after the author's death. The term of copyright protection can vary for certain categories of works, such as government works that are protected by Crown copyright, anonymous works, unpublished works, and non-dramatic cinematographic works. 

Once the term of copyright protection lapses, a work is no longer protected by copyright and it is considered to be within the scope of the public domain. The 'public domain' refers to a category of works for which the term of copyright protection has lapsed. Works that are within the public domain can be used without restrictions or authorization/permission from the author or copyright owner. Please note that while works in the public domain are no longer protected by copyright, the author and work should still be acknowledged, by way of an attribution statement, citation, credit line, or other form of acknowledgement, when the work is used for academic purposes. 

The following graphics illustrate what copyright is and how it works. 

For more information about what copyright is and how it works, please see our Overview of Copyright page.   

Fair dealing is an exception in the Copyright Act that permits the use of copyright-protected materials and works, for specific purposes, without authorization or permission from the author or copyright owner. Sections 29, 29.1, and 29.2 of the Copyright Act state that fair dealing for the purpose of research, private study, education, parody or satire, criticism or review, or news reporting does not infringe copyright. Sections 29.1 and 29.2 require that the source and author/performer/maker of a sound recording/broadcaster of a communication signal be acknowledged when copyright-protected works are used for the purpose of criticism or review or news reporting. 

While that is all the Copyright Act says about the fair dealing exception, the following are important takeaways: 

- There are eight purposes for which the use of copyright-protected materials and works constitutes fair dealing and does not constitute copyright infringement: research, private study, education, parody or satire, criticism or review, or news reporting. 

- 'Education' is an undefined term within the Copyright Act so it can be interpreted broadly. 

- While acknowledging the source and author are required for the purposes of criticism, review, and news reporting, it's important to note that sources and authors should be also acknowledged for the academic purposes of research, private study, and education. 

When it comes to applying and interpreting the fair dealing exception and determining whether a dealing with a copyright-protected material or work constitutes fair dealing, we need to consider the six fair dealing factors that were prescribed by the Supreme Court of Canada in the decision regarding CCH Canadian Ltd. v. Law Society of Upper Canada (2004): 

1. The purpose of the dealing, 

2. The character of the dealing, 

3. The amount of the dealing, 

4. The availability of alternatives to the dealing, 

5. The nature of the work, and 

6. The effect of the dealing on the work. 

Conducting a fair dealing assessment to determine whether a dealing with a copyright-protected material or work constitutes fair dealing will involve considering the six fair dealing factors as follows: 

1. The purpose of the dealing: is the dealing with the copyright-protected material or work for one of the eight purposes that the Copyright Act states constitutes fair dealing and does not constitute copyright infringement (research, private study, education, parody or satire, criticism or review, or news reporting)?

2. The character of the dealing: which and how many of the author's or copyright owner's economic rights are being exercised without their authorization or permission in order to deal with the copyright-protected material or work for the specific purpose? Is the format of the copyright-protected material or work being transferred (ie print to digital)? Are single or multiple copies being made? Are single or multiple copies being distributed to one person or student, a few people or students, or many people or students? Are copies being destroyed after the purpose of the dealing has been achieved? How, and in what manner, will the moral right of attribution be respected?

3. The amount of the dealing: in proportion to the copyright-protected material or work, how much of the copyright-protected material or work is being reproduced, distributed, communicated, performed, exhibited, or translated/adapted? Is that amount substantial or insubstantial? Is a single short excerpt involved in the dealing or are multiple short excerpts involved in the dealing? Has the amount of the dealing been considered from both qualitative and quantitative perspectives?

4. The availability of alternatives to the dealing: have available alternatives to the dealing been identified and considered? Is the copyright-protected material or work available through the databases or among the eResources that Queen's University Library licenses and subscribes to? Is an equivalent alternative available within the public domain or through a Creative Commons license? Is the copyright-protected material or work available online and, if so, can a link or hyperlink be shared instead of the copyright-protected material or work being reproduced? 

5. The nature of the work: what is the nature of the copyright-protected material or work involved in the dealing? Has the material or work been published or is it an unpublished material or work? Has the material or work been published as a consumable, such as a case study or a work book? Is the material or work intended for a specific audience, such as an Indigenous work, a desk copy of a textbook or an instructor's manual, a document prepared by a student and submitted only to an instructor, or a material or work commissioned by an individual or entity for a specific purpose and audience?

6. The effect of the dealing on the work: will the dealing with the copyright-protected material or work have an adverse effect on the author's or copyright owner's ability to exploit the economic value and potential of their material or work? Is the dealing with the copyright-protected material or work likely to compete with the original material or work in its market?

The graphic below is intended to illustrate how fair dealing works: the identification of the purposes from the Copyright Act, the consideration of the six fair dealing factors from the Supreme Court of Canada's decision regarding CCH Canadian Ltd. v. Law Society of Upper Canada (2004), and compliance with the Fair Dealing Requirements for Educational Copying (Appendix A of Queen's University's Copyright Compliance and Administration Policy). 

For more information about what fair dealing is and how it works, please see our Overview of Fair Dealing page. 

There has been a significant amount of public and Parliamentary discussion and debate as to whether legislation specific to artificial intelligence is required and whether artificial intelligence needs to be regulated. In the absence of such legislation and regulations, it is possible that the Canadian Copyright Act, in its current state, is equipped to address the use of copyright-protected works in association with artificial intelligence tools because it was designed with the principles and concepts of media neutrality, technological neutrality, and functional equivalence in mind.  

In the 2002 decision regarding Théberge v. Galerie d'Art du Petit Champlain inc., the Supreme Court of Canada acknowledged that "technologies have evolved by which expression could be reproduced in ways undreamt of in earlier periods, such as evanescent and virtual copies in electronic formats" (para. 47).

In the 2006 decision regarding Robertson v. Thomson Corp., the Supreme Court of Canada stated that "the Copyright Act was designed to keep pace with technological developments to foster intellectual, artistic, and cultural creativity. In applying the Copyright Act to a realm that includes the Internet, courts face unique challenges, but in confronting them, the public benefit of this digital universe should be kept prominently in view" (para. 79). The concept of 'media neutrality' was addressed as follows: "media neutrality is reflected in s. 3(1) of the Copyright Act which describes a right to produce or reproduce a work "in any material form whatever". Media neutrality means that the Copyright Act should continue to apply in different media, including more technologically advanced ones. But it does not mean that once a work is converted into electronic data anything can then be done with it. The resulting work must still conform to the exigencies of the Copyright Act. Media neutrality is not a license to override the rights of authors, it exists to protect the rights of authors and others as technology evolves" (para. 49). "Under the concept of media neutrality, an author's exclusive right to reproduce a "substantial part" of a copyrighted work is not limited by changes in form or output made possible by a new medium. It is not the physical manifestation of the work that governs, it is whether the product perceivably reproduces the exercise of skill and judgement by the publishers that went into the creation of the work" (preface). 

In the 2012 decision regarding Entertainment Software Association v. SOCAN, the Supreme Court of Canada stated that "the principle of technological neutrality requires that the Copyright Act apply equally notwithstanding the technological diversity of different forms of media" (para. 2). "The principle of technological neutrality is reflected in section 3 of the Copyright Act, which describes a right to produce or reproduce a work "in any material form whatever". In our view, there is no practical different between buying a durable copy of the work in the store, receiving a copy in the mail, or downloading an identical copy using the Internet. The Internet is simply a technological taxi that delivers a durable copy of the same work to the end user" (para. 5). "The principle of technological neutrality requires that, absent evidence of Parliamentary intent to the contrary, we interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user. To do otherwise would effectively impose a gratuitous cost of more efficient, Internet-based technologies" (para. 9). 

Lastly, in the 2015 decision regarding CBC v. SODRAC 2003 Inc., the Supreme Court of Canada stated that " the principle of technological neutrality is rooted in the words "to produce or reproduce the work or any substantial part thereof in any material form whatever". Technological neutrality ensures that copyright attaches to a particular activity based on the essential character of the activity or output, rather than to the process by which it occurs. Technological neutrality consists of media neutrality and functional equivalence. Media neutrality seeks to ensure that copyright doctrine evolves to embrace new technologies, preserving copyright not only in the medium in which the work is created but all existing and future media in which the work might be expressed. As long as the creative expression survives the transfer to a new medium, copyright in the work will survive" (preface). "Functional equivalence focuses on what the technology at issue is doing, rather than on the technical modalities of how it is doing it. This leads to interpretations of the Act that give functionally equivalent technologies similar treatment. It also avoids imposing copyright liability on technologies and activities that only incidentally implicate copyright" (preface). 

If we apply what we know about Canadian copyright law, including fair dealing, and decisions from Canadian courts, the following are copyright considerations for the four stages of generative AI: 

The sections below seek to address each of the copyright considerations for each of the four stages of generative artificial intelligence. 

The Copyright Act is intended to be technologically neutral but we will need the Canadian courts to interpret and apply copyright law in relation to the training and use of AI products. In the meantime, the following are suggested best practices for faculty: 

- The academic exception entitles Queen's faculty to retain the ownership of and rights to the work that they create but faculty will not own the rights to any outputs generated by AI products as AI-generated content is not eligible for copyright protection. 

- Input your own work at your discretion, it's unlikely that you'll be able to retrieve your work if you change your mind. 

- Avoid inputting your course materials and works to which you do not own the rights or have not licensed the rights. 

- Be aware that AI products are being incorporated into content platforms, including some databases and eResources that Queen's University Library subscribes to and licenses the use of. Content within these platforms can be used in association with the incorporated AI products but content should not be extracted from these platforms and used in association with external AI products. 

- Public domain and CC 0-licensed works can be inputted into AI products but be aware of potential biases. 

- Disclose use of AI products with a disclaimer that indicates which AI product was used and the extent to which is was used and/or the extent to which you edited, adapted, or modified the output. 

- Fact-check outputs, incorporate citations, and add references as appropriate. 

- Students retain the ownership of and rights to the work that they create so consent from students will be needed if you intend to input their work for assessment or grading purposes. Please see Queen's University's Guidance on the Use of Generative Artificial Intelligence in Assessment.

- Inform students if and when the use of AI products is permitted in your courses. Please see the Centre for Teaching and Learning's Generative AI in Teaching and Learning page.  

If you have any questions about copyright and artificial intelligence or need assistance, please contact Meaghan Shannon, Copyright Librarian: meaghan.shannon@queensu.ca.