Copyright FAQ

This FAQ does not constitute legal advice.
For further information, please see the Canadian Intellectual Property Office's website.

What is Copyright?
What rights are included in copyright?
What does copyright apply to?
How long does copyright last?
Who owns copyright?
What is public domain?
What is infringement?
How do I know if my use requires permission from the copyright owner?
What are examples of situations where I need permission from the copyright owner?
What if I cannot locate the copyright owner?
What is fair dealing?
What are some examples of "fair dealing"?

What is Copyright?

Copyright is a set of rights granted by legislation (Copyright Act) that gives the creators of original material (termed "works") limited control of how that material can be used. Copyright is intended to encourage people to make creative contributions to society by securing their right to benefit from their efforts for a period of time. At the same time, copyright seeks to balance the creator's interests with society's legitimate needs to have access to and make use of those creations.

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What rights are included in copyright?

The owner of the copyright in a work has the exclusive right to:

     . Reproduce the work
     . Publish the work
     . Communicate the work to the public by broadcasting or telecommunications
     . Perform the work in public
     . Publicly exhibit works of art

These rights are often referred to as "economic rights". In addition to the economic rights, the creator of a work has "moral rights". These rights allow the creator of a work to be associated with a work as its author (or to remain anonymous) and to limit uses of the work in ways that might harm their reputation.

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What does copyright apply to?

Copyright applies to "original" literary, artistic, dramatic, cinematographic or musical works. The work must exist as a fixed format (e.g., a written text, painting, audio recording), and it must originate from the author of the work (i.e., not be a copy of an already existing work). Finally there must have been some skill and effort involved in its creation. It need not be particularly creative, but it must be more than a routine mechanical exercise.

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How long does copyright last?

In most cases, a work remains copyrighted for 50 years after the death of the author of the work. There are a number of exceptions to this:

     . Works with multiple authors - 50 years after the death of the last author
     . Published works where the author is unknown - 50 years after first publication
     . Unpublished works where the author is unknown - 75 years after the creation of the work
     . Photographs made by a corporation - 50 years after the photograph was taken
     . Movies of a "non-dramatic" nature - 50 years after creation or publication

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Who owns copyright?

Copyright is initially owned by the creator of the work (called the "author" in the Act), unless that work was created in the course of employment (in which case the employer is the first owner of the copyright), or commissioned photographs (in which case the person/organization that commissioned the photos is the first owner of copyright).

However, the author or the original owner of a copyright may not be the current owner of those rights. It is important to remember that copyright may be sold, given away or otherwise traded. In cases where permission is needed to use a work, you must get permission from the current owner of the copyright, not the author (although in many cases, they may be the same).

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What is public domain?

Works where the term of copyright has expired are said to have entered the "public domain". For these works, copyright no longer exists. Public domain works may be freely used by anyone.

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What is infringement?

Infringement is the act of using a copyrighted work in a way that only the copyright owner has the right to (reproduce, publish, perform, etc.), without first getting permission from the copyright owner. Infringement of copyright may expose a person to both civil and criminal liability depending on the nature of the infringement.

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How do I know if my use requires permission from the copyright owner?

If the work you are using is in the public domain you can use it freely without fear of infringement because there is no copyright owner. If your use is considered "fair dealing" under the Copyright Act, then you do not require permission of the copyright owner to use the work. Any other use that falls under one of the copyright owner's exclusive rights requires permission from the copyright owner.

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What are examples of situations where I need permission from the copyright owner?

You need permission from the copyright owner to:

     . Publish a copy or a substantial portion of a work, including posting on the internet
     . Sell copies of all or substantial portions of a work
     . Make multiple reproductions of a work for display on posters, t-shirts, etc

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What if I cannot locate the copyright owner?

The Copyright Board of Canada provides information on what to do if you cannot locate a copyright owner. Please visit their website at http://www.cb-cda.gc.ca/

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What is fair dealing?

Fair dealing is a legal concept present in the Copyright Act that states that certain types of uses are "fair"; these types of uses do not require permission from the copyright owner, and are not considered to be an infringement of copyright. The types of uses considered "fair dealing" are:

     . Research or private study
     . Criticism or review
     . News reporting

In addition to being for one of the listed purposes, the dealing must also be a "fair" one - not abusive of the Act's intent to provide for limited use of copyrighted works for these purposes.

Under fair dealing, archives and libraries can make copies of a work for a patron if the patron's use is for research or private study or for criticism or review. When ordering reproductions from the Archives, news reporting would be considered an "Other Use".

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What are some examples of "fair dealing"?

The Copyright Act does not provide a definition of fair dealing. However, there are interpretations by legal scholars as well as case law that interpret what is and isn't fair dealing.¹ There seems to be a general agreement among sources on the following:

     . When making photocopies of textual material for research or private study, copying a single chapter or less from a book, or an entire article from a journal, newspaper or magazine would likely be considered fair dealing

     . Quoting part of a work in a publication for review, criticism or news reporting would likely be considered fair dealing as long as only the part of the work necessary to support the argument or opinion being made was quoted. For example, it would likely not be considered fair dealing if you quoted one or two paragraphs from a book as part of a review, but not if you quoted an entire chapter. Similarly, airing a 30-second clip of a concert performance as part of a news report would be more likely considered fair dealing than airing the entire concert as part of the same report.

     . Making a single copy of a photograph for research or private study would likely be considered fair dealing. It is recognized that in some cases, it is permissible to copy an entire work because the nature of the work necessitates that the whole work be present in order to understand any part of it. For example, it would be difficult, if not impossible, to study only 10% of a photograph.

The Supreme Court suggests considering six criteria when evaluating whether or not a given use falls under fair dealing:

Purpose of the Dealing - Is the intended use one of the ones listed as fair dealing in the Copyright Act - research, private study, criticism, review, or news reporting? A use that is for one of these purposes will probably not be considered fair dealing. However, even if used for one of the listed purposes, the dealing might not be "fair" when the other criteria are taken into consideration.

Character of the Dealing - Is the character of the dealing consistent with the spirit of the law, particularly when considering how many copies are made, and whether copies are widely distributed or published? A dealing is more likely to be considered fair if only a single copy is made, or if it is not widely distributed.

Amount of the Dealing - Has the use of the work been kept to the minimum amount needed to achieve the intended purpose? A dealing is more likely to be considered if portion of the work used is limited to the minimum amount necessary (E.g., quoting a paragraph from a book in a review would likely be considered more fair than quoting an entire chapter). However, in some cases it is possible (and necessary) to deal with an entire work:

     . Reproducing a single copy of a photograph is generally considered fair dealing if the reproduction is used for one of the purposes cited by the Act
     . Reproducing an entire article from a magazine, academic journal, or newspaper for the purpose of research or private study is generally accepted as fair dealing

Alternatives to Infringement - Is there another source available that can be used for the same purpose that would not create an infringement?

Nature of the Work - Is it inherent in the nature of the work that others make use of it for fair dealing purposes? University professors have an expectation that their publications will be quoted; but the author of a diary might not have a similar expectation.

Effect of the Dealing - Does the use negatively harm the copyright owner's economic interest in the work?

In summary, your use of a work is more likely to be considered fair dealing if you:

     . Use it for one of the purposes in the Act-research, private study, criticism, review or news reporting
     . Limit reproductions to a single copy
     . Limit the amount copied or quoted from a work to only what is necessary
     . Don't use the work in a way that would create marketplace competition for the original work
     . Don't distribute whole copies of the work
     . Choose available alternative sources if they can accomplish the same purpose

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¹The most important of these is probably the Supreme Court of Canada ruling in the case between CCH Canadian Ltd. And the Law Society of Upper Canada (CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13). Back to Note 1