Cecily Zamora
The Canadian Copyright Act grants the exclusive right to reproduce, publish, and sell a work to its owner. However, citing case law in Canada may not always constitute copyright infringement. There are exceptions and defences to copyright infringement in Canada, including fair dealing for purposes of research, private study, education, parody, satire, criticism, review, and news reporting. Other exceptions include format shifting due to obsolete technology, displaying work for educational purposes, and making backup copies of legally obtained sources. The determination of infringement and any resulting liability is decided in a court of law, where the defendant must prove that their dealing was for an allowable purpose and was fair in nature.
| Characteristics | Values |
|---|---|
| What is copyright? | The exclusive legal right to reproduce, publish, and sell a work. |
| What is infringement? | A breach or violation of copyright law. |
| Types of infringement | Direct and indirect. |
| Direct infringement | When someone, without the permission of the rights holder, does something with a protected work that only the copyright owner has the right to do or authorize. |
| Copyright owner | The sole entity that may rightfully reproduce the work or a substantial part thereof. |
| Exceptions | Fair dealing, back-up copies, format shifting, educational purposes, news and commentary, reproduction for display, and copying for people with disabilities. |
| Copyright Act | The act that governs copyright law in Canada and includes provisions for infringement and remedies. |
| Duration of copyright | Lifetime of the author plus seventy years as of December 30, 2022. |
| Amendments | The Copyright Act has been amended multiple times, with the most recent amendment on July 1, 2020, creating a new category of infringement related to rights management information. |
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What You'll Learn
Citing case law in Canada: copyright infringement exceptions
The Canadian Copyright Act grants the sole and exclusive right to create and recreate a work, whether wholly or substantially. This includes the right to perform the work or any substantial part of it. However, not all reproductions of a work constitute copyright infringement.
Section 3 of the Canadian Copyright Act stipulates that the copyright owner is the only entity that may rightfully reproduce the work or a substantial part of it. However, the term "substantial" is key here. Excerpts of the work, such as quotes or short clips, may be replicated without penalty in many cases. The assessment of whether the replicated portion is "substantial" depends on the particular work in question and can involve several factors, including the size of the reproduced excerpt compared to the size of the entire work and whether a critical or negligible part of the work was reproduced.
Independently producing an identical or similar work without copying the copyrighted work does not constitute copyright infringement under Canadian law. However, proving independent production of a work may be difficult if the case proceeds to litigation, especially if the copyrighted work in question is widely available.
There are two types of copyright infringement: direct and indirect. Direct infringement occurs when someone, without the permission of the rights holder, does something with a protected work that only the copyright owner has the right to do or authorize. For example, only the copyright owner has the right to make a copy or authorize the making of a copy of a protected work. When a person makes an unauthorized copy, this is direct infringement, unless an exception applies. Indirect infringement refers to dealings with infringing copies of protected works, including unauthorized public performances of protected works.
There are several exceptions to copyright infringement in Canada, including:
- Fair dealing: Fair dealing is not a defence to copyright infringement but an exception. Allowable purposes under the Copyright Act include research, private study, education, parody, satire, criticism, review, and news reporting.
- Non-profit educational institutions, libraries, museums, broadcasters, and people with disabilities are allowed to copy copyrighted works in specific circumstances without the permission of the copyright owner or the need to pay royalties.
- News and commentary (Section 29.6 of the Copyright Act): Instructors may copy news and news commentary from radio and television broadcasts for educational or personal use.
- Reproduction for display (Section 29.4 (1) of the Copyright Act): Reproduction of a work or any other necessary act, in order to display it in the classroom for educational purposes, is allowed as long as the work is not already commercially available in an appropriate format.
- Back-up copies (Section 29.4 of the Copyright Act): An individual may make a copy of a work from a legally obtained source for backup purposes in case the copy is damaged or lost.
- Format shifting due to obsolete technology (Section 29.22 of the Copyright Act): If the means to play a video or audio format no longer exists and there is no commercial copy available, a copy may be made in a different format to protect the original for preservation purposes.
- Private copying levy: Since 1999, private copying levies on blank audio recording media (such as audio cassettes, CDs, and CD-Rs) have raised funds for those in the music industry. In exchange, the act of copying music onto an audio recording medium for private use does not constitute copyright infringement, subject to certain exceptions.
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What constitutes copyright infringement?
In Canada, copyright is the exclusive legal right to reproduce, publish, and sell a work. Copyright infringement occurs when there is a breach or violation of these rights. There are two types of infringement: direct and indirect. Direct infringement involves an individual, without the permission of the rights holder, engaging in activities with a protected work that only the copyright owner has the right to do or authorize. For instance, creating a copy of a protected work without permission constitutes direct infringement unless an exception applies.
The Canadian Copyright Act recognises that independently producing an identical or similar work without copying the copyrighted work does not constitute copyright infringement. However, proving independent production can be challenging, especially if the copyrighted work is easily accessible. In such cases, a defence of fair dealing can be asserted, but it is not a defence to copyright infringement; rather, it is an exception. Fair dealing requires proof that the dealing was for an allowable purpose, such as research, private study, education, parody, satire, criticism, review, or news reporting, and that it was fair.
The concept of substantiality is crucial in determining copyright infringement. While reproducing an excerpt of a work, such as a quote or a short clip, may not always constitute infringement, the assessment depends on the specific work and factors such as the size of the reproduced portion relative to the entire work and whether a critical or negligible part was reproduced.
In terms of remedies, copyright owners can seek legal recourse through injunctions, damages, accounts, and other available remedies conferred by law. Additionally, new copyright exceptions have been introduced for nonprofit educational institutions, libraries, museums, broadcasters, and people with disabilities, allowing them to copy copyrighted works in specific circumstances without the copyright owner's permission or the need to pay royalties.
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Defences against copyright infringement allegations
Defences to copyright infringement are legal arguments or justifications that defendants may use to contest allegations of violating someone else's copyright. Here are some defences that can be used in response to allegations of copyright infringement:
No Copying of a Substantial Part
If it can be argued that no substantial part of the copyrighted work was copied, this may serve as a defence against infringement allegations. This defence does not consider minor or trivial copying as copyright infringement.
Fair Dealing
Fair dealing is a statutory defence that allows limited use of copyrighted material without the copyright owner's permission. This defence is applicable when the use is for purposes such as criticism, comment, news reporting, teaching, research, education, parody, or satire. The Supreme Court of Canada has emphasised that fair dealing should not be interpreted restrictively, aiming to balance the rights of copyright owners and users' interests.
Public Interest
The defence of public interest is based on common law principles and acts independently of statutes. It applies when it is necessary to publish more than just short extracts of copyrighted material. This defence is identical to that available in cases concerning breach of confidence.
Public Domain
Works in the public domain are not protected by copyright and can be freely used by anyone. Works may enter the public domain when their copyright expires, when they are not eligible for copyright protection, or when the copyright owner places them in the public domain.
Licence or Permission
If the defendant can demonstrate that they had a valid licence or permission from the copyright owner to use the copyrighted material, this serves as a strong defence. Clear and written evidence of such licence or permission is essential.
First Sale Doctrine
The first sale doctrine allows individuals who legally acquire a copyrighted work to resell, lend, or dispose of that particular copy without infringing the copyright owner's exclusive rights. This typically applies to physical copies such as books or CDs.
Independent Creation
If the defendant can prove that they independently created the work without accessing or copying the copyrighted material, this demonstrates that no copyright infringement occurred.
Statute of Limitations
Copyright infringement claims must generally be brought within a specific timeframe after the alleged infringement. If the plaintiff files a lawsuit outside of this statute of limitations, the defendant can raise this as a defence.
De Minimis Use
Courts may apply the de minimis doctrine when the alleged infringement is minor and has little to no impact on the value of the copyrighted work. In such cases, the use of copyrighted material may be considered inconsequential and not constitute infringement.
Abandonment
If the copyright owner has failed to assert their rights over an extended period, it may be argued that they have abandoned their copyright, and this can be raised as a defence.
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The burden of proof when asserting fair dealing
In Canada, fair dealing is an integral part of the Copyright Act, balancing the rights of copyright owners and users. It is a statutory exception to copyright infringement, allowing users to deal with copyrighted material for specific purposes without infringing on the owner's rights. The purposes include research, private study, education, parody, satire, criticism, review, and news reporting.
When asserting fair dealing as a defence, the burden of proof lies with the defendant. They must prove that the dealing was for an allowable purpose under the Copyright Act and that it was fair. Allowable purposes are given a large and liberal interpretation by the Supreme Court of Canada, ensuring that users' rights are not unduly constrained. This interpretation applies to all fair dealing purposes and not just research.
The defendant must demonstrate that the dealing meets one or more of the allowable purposes. The greater the amount of copyrighted work used, the higher the burden of justification for the defendant. The Copyright Board of Canada has indicated that copying more than 10% of a work tends to make the dealing unfair.
In the case of United Airlines, Inc. v. Cooperstock, the court considered whether the defendant's use of copyrighted material for parody was fair dealing. While the website created by Dr. Cooperstock was a spoof of United Airlines' website, the court decided that the dealing was not captured by parody as the spoof was too good. This case illustrates the defendant's burden of proof in asserting fair dealing, specifically regarding the assessment of fairness.
It is important to note that fair dealing applies regardless of the nature of the work, whether it is published or unpublished, confidential or non-confidential. However, it may be more difficult to prove that the dealing was fair for unpublished works, as seen in the legal practices of the US and UK.
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Copyright Act: new categories of infringement
It is important to note that the reproduction of excerpts of a work, such as quotes or short clips, may not constitute copyright infringement in Canada. This is because the Canadian Copyright Act recognises that the copyright owner is the only entity that may reproduce a substantial part of their work. The term "substantial" is key here, and its assessment depends on the specific work in question. Factors to consider include the size of the reproduced excerpt relative to the entire work and whether a critical or negligible portion was reproduced. Additionally, independently producing an identical or similar work without copying does not infringe copyright under Canadian law.
While there is no explicit mention of citing case law in Canada being copyright infringement, it is worth noting that copyright law in Canada has undergone recent amendments, extending the term of copyright protection from life-plus-fifty to life-plus-seventy years. This change was implemented on December 30, 2022, and it brings Canadian law closer to US copyright law, which has a life-plus-seventy-year term.
In the United States, copyright law is covered under Title 17 of the United States Code, which includes the Copyright Act of 1976 and subsequent amendments. The US also has specific legislation addressing online intermediaries, such as the Digital Millennium Copyright Act (DMCA) of 1998, which grants limited statutory immunity to online intermediaries who promptly remove infringing content upon notification. This is known as the "safe harbour" provision.
Regarding new categories of infringement, copyright law is constantly evolving to address new challenges, particularly in the digital realm. For example, the increasing reach of the Internet has led to widespread, anonymous copyright infringement, shifting the focus of copyright-dependent industries towards holding service providers and software distributors accountable as indirect infringers. Additionally, new legislation, such as the Artistic Recognition for Talented Students Act and the James M. Inhofe National Defense Authorization Act, signed into law in December 2022, further expands and amends existing copyright laws.
To summarise, while citing case law in Canada may not be explicitly addressed in copyright infringement discussions, recent amendments to copyright law in Canada and the US underscore the dynamic nature of this area of law, particularly in response to evolving technologies and online behaviours.
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Frequently asked questions
Citing case law in Canada is not considered copyright infringement as long as the citation includes the source of the original work and the name of the author or creator.
Direct copyright infringement in Canada occurs when someone, without the permission of the rights holder, does something with a protected work that only the copyright owner has the right to do or authorize. Indirect infringement refers to dealings with infringing copies of protected works, including unauthorized public performances.
Fair dealing exceptions in Canada include research, private study, education, parody, satire, criticism, review, and news reporting.
In the 2017 case of United Airlines, Inc. v. Cooperstock, the court considered whether Dr. Cooperstock's creation of a website closely resembling United Airlines' website for the purpose of sharing negative experiences with the airline constituted copyright infringement. The court decided that while the website was a spoof, it did not fall under the category of parody as the spoof was too good.
