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Copyright

Providing easy access to help navigate the ins and outs of Canadian Copyright Law. Information contained herein is just that, and should not be a substitute for legal advice.

Do I Need to Ask Permission?

We know that any work that is written in Canada can be copyrighted, so if you want to provide a quotation in your academic writings? How much of a work can you quote? There are two things to consider right off the bat:

1. Copyright Only Covers the Expression of Ideas, Not Facts:

Copyright exists to protect the expression of facts and ideas, not to the ideas themselves. To take an example, if you want include or reference data presented in a bar graph in a report, only the actual bar graph would be copyrighted, not the data it represents. Thus, you should be fine to take the data from the bar graph and turn into a table, pie chart, or other expression without worrying about copyright infringement. However, simply taking the original bar graph and, for example, changing the colour scheme would probably not be enough; in that case, either permission would need to be sought, or you would need to rely on an exemption like Fair Dealing (more on this below).

The above also applies to paraphrasing, which is taking the ideas expressed in a text and expressing them in your own words.

2. Copyright Only Applies to a Copying a Substantial Amount:

Section 3(1) of Canada’s Copyright Act defines copyright in the following terms: “For the purposes of this Act, 'copyright,' in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever…”

The important words in that quotation are that for it to be copyright infringement it must be a substantial part. However, neither the legislation nor any court decisions spell out exactly what would be considered a substantial part of a copyrighted work (is it 5% of an article? Or 15%? Or 20%?).

However, the courts do provide us with some guidance on figuring out what may or may not count, even if we do not have a specific percentage that says whether something is substantial or not. The Federal Court of Canada ruling in Warman v. Fournier (2012) provides such guidance. In this case, Fournier operated a website, and posted on it an article (originally published in the National Post), to which Warman owned the rights. Originally the whole of the article was reproduced, however, after a claim, Fournier took the 11 paragraph article, and reproduced only the headline and three paragraphs. Warman proceeded to sue Fournier for copyright infringement. The courts eventually sided with Fournier, and found that this was not demonstrated to be a substantive part of the article. The court based their decision that it was not substantial on five factors:

a. The quality and quantity of the material taken;

b. The extent to which the respondent’s use adversely affects the applicant’s activities and diminishes the value of the applicant’s copyright;

c. Whether the material taken is the proper subject-matter of a copyright;

d. Whether the respondent intentionally appropriated the applicant’s work to save time and effort; and

e. Whether the material taken is used in the same or a similar fashion as the applicant’s.

Deciding that 3 out of 11 paragraphs of an article (roughly 27%) is not substantial does seem to set a high bar, although it is important to consider factor (d) above, if the materials was being cited verbatim to simply save time and effort (i.e., it could have been paraphrased), then 27% of an article could possibly be considered substantial.

Fair Dealing in Publishing

Even if your copying is substantial, it might still be covered under what is known as Fair Dealing. In the Warman case, the ruling also noted that even if that case did find that the use of those three paragraphs were substantial, it was ruled that Fair Dealing could still have applied in that particular case. Fair Dealing is a right given to users in Section 29 of Canada’s Copyright Act which allows one to use longer excerpts of copyrighted work under certain conditions.

The Act specifies eight conditions under which someone may engage in Fair Dealing with a copyright-protected work: Research, Private Study, Education, Parody, Satire, Criticism, Review, or News Reporting. As well, when the use is for Criticism, Review, or News Reporting, the source work must be cited. Now, for publication several categories could apply: Criticism (note this does not have to be “negative” criticism, a citation you are agreeing with would count here), Review, or possibly News Reporting.

After this, a further six conditions have to be weighed to asses whether that particular dealing is Fair or not (Purpose; Character; Amount; Alternatives; Nature; and Effect), you can learn more about them by clicking here.

Recent court decisions have indicated that the courts interpret these categories in a “large and liberal” manner. For example, in the Warman case the justice found that 3/11 paragraphs of a news article were not substantial, but even if they were demonstrated to be, they would be covered under Fair Dealing.

Another example of the court interpreting Fair Dealing can be seen in the 1997 case Allen v. Toronto Star. In this case, the newspaper the Toronto Star took the photograph from the cover of an issue of Saturday Night magazine and reprinted it. The photograph depicted Canadian politician Sheila Copps riding a motorcycle, and was reproduced in its entirety as part of a story on her changing image. Allen, the copyright owner of the photographer, sued The Star for copyright infringement. Eventually the courts, on appeal, sided with The Star and found that the use fell under Fair Dealing (for the purposes of news reporting). The courts, in their examination, highlighted the purpose and the nature of the use, noting that the inclusion of the whole photograph was essential for the news story, and the inclusion of the photograph did effect the copyright holder commercially.  

Some Common Contacts and Exemptions

Canadian Government Documents: All documents that are created by the Canadian Government are considered to be held under Crown Copyright. This means that they are copyrighted, and owned by the government. However, you do not require permission to reproduce Crown Copyright materials for non-commercial purposes. Thus, if you wish to use Government of Canada material in your thesis without permission this would be fine. However, if you wish to use it in a commercially available publication, you will need to clear permission. This is done by contacting the department that produced the work in question: Click here for more information.

Similarly, United Kingdom Government documents are held under Crown Copyright, but the Nationals Archives does state that one may “freely quote” from such documents. Click here for more information.

The United Nations has produced this paper on the use of its materials (see especially section 5). For items that it does not offer for sale (i.e. parliamentary debates) they may be freely copied and used.

Similarly, documents from the United States Government are not considered to be copyrighted.

Of course, any material that is in the public domain may be used without concern (but, of course, should still be cited), and material made available under a creative commons license may be used (under certain circumstances, and depending on the specific license).