ARTICLE 35 - Copyright
35:01 The University acknowledges that it has no interest in and makes no claim to any copyrights in any works, including those created with alternative learning technology, authored by a member save and except when such work was made, prepared, produced, authored or otherwise developed by a member involving the use of direct University funding, or under a contractual agreement with the University, or with the use of the University production facilities as defined in clause 35:02 (e), including personnel, equipment and material free of charge or substantially below commercial rates, or in which the University has rights as licensee in accordance with the provisions of this Article 35. The Association acknowledges that its members have no interest in and make no claim to copyright in work commissioned by the University, unless otherwise agreed to in the contractual agreement between the University and the member, or in any official reports, correspondence, grades, assessments or similar material produced pursuant to the normal administrative duties of a member within the University.
35:02 For the purposes of this Article:
(a) The word "copyright" shall be read and understood as used in the context of the Copyright Act of Canada and means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof.
(b) The words "author" and "work" shall be read and understood as used in the context of the Copyright Act of Canada.
(c) The words "recorded work" shall mean all finished recordings made on magnetic tape, film, phonograph record, kinescope, plate, computer disk, CD-ROM, mainframe computer file or other recording medium. However, articles, books, class notes, class syllabi and bibliographies shall not be read or understood as recorded work.
(d) The payment of Normal Salary to the member shall not constitute direct University funding unless agreed otherwise by the member in writing.
(e) University production facilities means equipment, computers, software or materials which are:
(i) provided by the University for use by members in carrying out their responsibilities as teachers and/or scholar researchers; and
(ii) used by a member carrying out the abovementioned responsibilities, in the making, preparation, production or development of any recorded work(s) in respect of which the member wishes to assert the member’s rights as owner of the copyright therein. However, the use by a member of normally available word processing, spread sheet, database, communication, or analysis, application software installed on normally available computer facilities owned by the University, shall not constitute the use of University production facilities.
(f) The casual use by a member of computer based resources owned by the University shall not constitute the use of the University production facilities.
(g) A member shall not accept nor be offered by the University direct University funding or the use of the said University production facilities, including material free of charge or substantially below commercial rates, until they have written a letter, signed by the member and delivered to the Provost stating that they have read and understand the provisions of this Article 35. A copy of the said letter shall be sent to the Association forthwith by the member.
Recorded Works and License for Internal Use
35:03 The parties agree that, in the case of recorded works made, prepared, produced, authored or otherwise developed by a member involving the use of direct University funding or the use of the said University production facilities, including material free of charge or substantially below commercial rates, the University shall have the right to the free internal use of the work for the educational and instructional purposes of the University and the University shall be deemed to be a licensee of the member for this purpose. The rights of the University shall include the right, at the University's expense, to make copies of recorded works for the internal use of the University as set out in this clause 35:03. Nothing in this clause 35:03 shall be construed as a waiver of any copyright by the member who owns the copyright or as permission to the University or to any agent of the University to broadcast, diffuse or rediffuse the work to the general public (i.e., the University shall not broadcast to an audience not principally composed of faculty, students and staff of the University or other restricted audience in the course of internal use) other than as provided in this Article 35.
35:04 Where a member owns copyright in a recorded work made, prepared, produced, authored or otherwise developed by a
member involving direct University funding or the use of the said University production facilities, including material free
of charge or substantially below commercial rates:
(a) The license for free internal use of the work for the educational and instructional purposes of the University given to the University under clause 35:03 shall, in the absence of a written agreement to the contrary, cease one (1) year after the termination of the employment of the member at the University or five (5) years from the date of completion of the work, whichever duration is less. However if the work has been amended in pursuance of clause 35:12 by the member who owns copyright the aforementioned license shall, in the absence of any further written agreement, continue for a period of five (5) years from the date of such amendment, provided such amendment is made during the existence of the aforementioned license. In the case of layoff of the member from the University the license granted to the University pursuant to this clause 35:04 (a) shall cease on the date of the said layoff. A member may grant a further license to the University upon terms and conditions to be mutually agreed.
(b) A member who no longer owns copyright or shares copyright with one or more persons, or with respect to which there is some impediment or business arrangement which denies to the member the absolute right to comply with the intent herein, agrees to make every effort lawfully to comply with the provisions of clause 35:04 (a).
(c) The member(s) who owns copyright on completion of a recorded work for which the University has provided direct University funding or the use of the said University production facilities, including material free of charge or at a rate substantially below local commercial rates, shall write the Provost to inform the Provost of the completion of the work. The Provost shall reply within sixty (60) days stating whether or not the University wishes to exercise its option to secure a copy or obtain a license in accordance with the provisions of clause 35:03. If the Provost replies that the University does not wish to exercise these rights or if the Provost fails to answer within sixty (60) days, it shall be understood that the University has abandoned any right to secure a copy or obtain a license. If the member who owns copyright fails to notify the University as required, then the University maintains its rights under this Article until such a letter is written by the member(s) to the Provost and has been disposed of in accordance with the provisions of this Article.
Rights of Members to Edit, Erase or Remake All or Part of Recorded Work
35:05 A member who owns copyright in a recorded work which is made, prepared, produced, authored or otherwise developed by the member involving the use of direct University funding or the use of the said University production facilities, including material free of charge or substantially below commercial rates shall have the right to view the recorded work when completed and to exercise the copyright by requiring the editing or erasure of any part of such material in which the member owns copyright and has the right, subject to the approval of the Dean, to remake such part. Such editing and erasing shall not be exercised arbitrarily but only for good artistic or educational reason. In the case of disagreement with regard to the reasons for editing or erasing recorded work the member or the University may submit the issue to adjudication by an individual experienced in such matters mutually agreed upon by the University and the Faculty Association.
35:06 In the event that a member who owns copyright has not, within thirty (30) working days after the completion of the recorded work, notified the Dean that the member wishes to exercise their rights under the clause 35:05, the member shall be deemed to have waived their rights to edit, erase or remake as set out in clause 35:05. However, nothing in this clause 35:06 derogates from the provisions contained in clauses 35:10 to 35:12 inclusive. For the purposes of this Article 35, a work shall be deemed to be completed on the date when the recorded work has been put in its final form and is available to the member who owns copyright. The said member shall be informed by the University in writing when the recorded work is available.
Recorded Work and License for External Use
35:07 Where a member owns copyright in a recorded work made, prepared, produced, authored or otherwise developed by a member involving direct University funding or the use of the said University production facilities including material free of charge or substantially below commercial rates:
(a) The member shall grant to the University a license, that includes the right to grant others the right, to use the work externally for a term of five (5) years from the date of completion of the work. However, if the work has been amended in pursuance of clause 35:12 during the existence of said license by the member who owns copyright, the aforementioned license shall, in the absence of any further written agreement, continue for a period of five (5) years from the date of such amendment.
(b) The member shall either directly or through the agency of the Association establish by written agreement with the
University the fee or royalty to be charged for use of the recorded work for external purposes by the University or others. The said agreement shall provide that the member shall formally grant to the University the license referred to in clause 35:07 (a), and this agreement shall also set out the fee or royalty for the use of the recorded work for external purposes by the University or by others. The said agreement shall also include a budget statement that includes all estimated costs associated with the preparation, production, authoring and/or creation of the recorded work in question. The fee or royalty for the use of the recorded work by the University and the fee or royalty which the University shall charge others for the external use of the recorded work shall be established by negotiation between the University and the member. If the parties to the negotiation fail to reach agreement, with respect to the fee or royalty for the external use of the recorded work by the University and/or the fee or royalty which the University shall charge others for the external use of the recorded work, within thirty (30) days of the reply the Provost pursuant to clause 35:07 (e), the member or the University may submit the issue to adjudication by an individual experienced in such matters mutually agreed upon by the University and the Faculty Association.
(c) The member, if the license granted to the University pursuant to clause 35:07 (a), is not exclusive, shall not grant any other licenses at fees or royalties less than those determined in clause 35:07 (b).
(d) The member may waive any fee, royalty or other payment provided that such waiver shall be in writing and shall be limited to the occasion and the user or users specified in the said writing, and that a copy be provided to the Association.
(e) The member(s) owning copyright on completion of a recorded work for which the University has provided direct University funding or the use of the said University production facilities, including material free of charge or substantially below local commercial rates, shall write the Provost to inform the Provost of the completion of the work. The Provost shall reply within sixty (60) days stating whether or not the University wishes to exercise its option to secure a copy of the work and whether or not it wishes the license to exploit the work in accordance with the provisions of clause 35:07 (a). If the Provost replies that the University does not wish to exercise these rights or if the Provost fails to answer within sixty (60) days, it shall be understood that the University has abandoned any right to secure a copy or obtain a license. If the copyright owner fails to notify the University as required then the University maintains its rights under this Article until such a letter is written by the member(s) to the Provost and has been disposed of in accordance with the provisions of this Article.
(f) The University shall not loan or transfer a copy of the recorded work, nor allow any agent to loan or to transfer such a copy to any third party outside the University without written permission from the member(s) who own(s) the copyright(s) or from any agency duly appointed by the member(s) to represent the member’s interests. A copy of such permission shall be sent by the University to the Association within thirty (30) days of receipt by the University.
(g) Any fees or royalties or other gross income received as a consequence of the exploitation of the recorded work by the University pursuant to this clause 35:07 shall be distributed fifty percent (50%) thereof to the member and fifty percent (50%) thereof to the University, unless otherwise mutually agreed to by the member and the University.
35:08 The University shall not unreasonably restrain the external exploitation of copyright works and shall use its reasonable best efforts to promote the external commercial exploitation of recorded works falling under the provisions of clause 35:07 in the period(s) for which the University has a license under clause 35:07 (a).
Sale or Assignment by a Member of Recorded Work
35:09 Where a member owns the copyright in a work in which the University has subsisting rights to use internally as set out in clauses 35:03 and 35:04 or rights to use externally as set out in clause 35:07 and the member wishes to dispose of the member’s copyright by assignment, the member shall as a condition precedent to their right to assign:
(a) give the University the right of first refusal and otherwise adequately protect the University's subsisting rights to use the work internally as set out in clauses 35:03 and 35:04, and
(b) adequately protect the University's subsisting rights to use the recorded work externally as set out in clause 35:07.
The member may request in writing, to the Provost, to waive such requirements for protecting the University's subsisting rights and the University may dispense with either or both of the requirements at its discretion. In the event that the Provost has not replied in writing delivered to the member within thirty (30) days of the receipt by the Office of the Provost of the written request of the member, the member shall be deemed to have received the waiver requested.
Storage, Erasure and Withdrawal of Recorded Work
35:10 The University shall retain possession of every recorded work transferred to it pursuant to this Article 35 in which the copyright is owned by a member and shall exercise reasonable care to ensure that any such recorded work is not erased, amended or edited without complying with the provisions of clauses 35:05 and 35:06.
35:11 No recorded work in which a member owns copyright shall be erased by the University without thirty (30) days prior notice of the intended erasure being given to the member, such notice to be given in writing and delivered to the member at the member’s last address known to the Department of Human Resources of the University. Erasure is not contingent on acknowledgment or approval by the member, notice being solely to provide the opportunity before erasure for the member owning copyright in the recorded work to obtain copies of the work at the member’s own expense.
35:12 A member who alone owns the copyright in a recorded work in which the University has subsisting rights under clauses 35:03, 35:04 and 35:07, and who believes their work to have become unsatisfactory for a proposed use due to dating or unsuitability, may require the recorded work to be amended or may require its use to be withheld, but a member may not require such amendments or withholding within two (2) years of the delivery of the recorded work to the University unless otherwise mutually agreed by the member and the University. In the case of more than one member owning the copyright in a recorded work in which the University has subsisting rights under clauses 35:03, 35:04 and 35:07, all owners of copyright in the recorded work must agree to require amendment or withholding under this clause 35:12. However, if the part of the recorded work in which a member owns copyright is severable as set out in clauses 35:13 to 35:15 inclusive, the member may require the amendment or withholding pursuant to this clause 35:12 of that part of the recorded work in which the member alone owns the copyright. The member or the University may submit any dispute arising under this clause 35:12 to adjudication by an individual experienced in such matters mutually agreed upon by the University and the Faculty Association.
Severability of Recorded Work
35:13 Where more than one member owns a copyright in a recorded work in which the University has subsisting rights under clauses 35:03, 35:04 and 35:07, each copyright owner may exercise the member’s rights with respect to the part of the recorded work in which the member owns the copyright if the member’s part is severable from the rest of the recorded work.
35:14 A part is severable for the purposes of clause 35:13 if it could be erased without substantially diminishing the value of the remaining part or parts of the recorded work, or if it would be reasonably practicable to replace the part in the recorded work.
35:15 Where a recorded work includes non-severable parts in which copyright is owned by different persons and in which the University has subsisting rights under clauses 35:03, 35:04 and 35:07, any reference in this Article to rights of the owner of the copyright or to permission of the owner of the copyright shall be deemed to mean the unanimous permission of all such persons.
Use of University Production Facilities
35:16 Where the making, preparation, production or development of any recorded work requires the use of the said University production facilities, including material free of charge or substantially below commercial rates, such use shall be requisitioned in accordance with the forms developed by the University from time to time, if such forms do not violate or abridge this Agreement. Any sections of the forms which may violate or abridge this Agreement shall be deemed null and void.
