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Copyright for WMDD

Introduction

Canadian copyright strives for balance between user and creator rights (Théberge v. Galerie d'Art du Petit Champlain). 

The Copyright Act contains numerous exceptions for users --so called because they provide exceptions to uses of copyright-protected content that would otherwise be considered infringement. 

In your field, you will likely rely on your rights as both a user and creator. 

Fair Dealing

Fair dealing is an exception in the Copyright Act (s. 29) that permits use of copyright-protected works without payment or permission from the copyright owner for eight purposes: 

  • Education 
  • Research 
  • Private study 
  • News reporting
  • Criticism 
  • Review
  • Parody 
  • Satire

The Supreme Court of Canada has said that fair dealing is more than an exception to infringement: It is a user's right (CCH v. Law Society of Upper Canada). 

The American equivalent of fair dealing is fair use.

Fair Dealing Case Study: Oracle v. Google

This complicated copyright case began in 2010 when Oracle sued Google for copying portions of its Java APIs for its Android OS. Google argued that this was fair use.

In April 2021, the Supreme Court ruled in a 6–2 decision that Google's use of the Java APIs fell within the four factors of fair use. 

The tech world watched the case closely, because of its implications for interoperability.

Ironically, the technology at the center of the case was largely outmoded by the time of the 2021 decision.

Determining If a Use Is Fair?

Fair dealing must be assessed on a case-by-case basis. The Supreme Court of Canada outlined six factors to help determine if a particular use (or "dealing") of a copyright-protected work is fair:

  1. Purpose
    • Is the use one of the eight purposes permitted under fair dealing (education, research, private study, criticism, review, news reporting, parody, or satire)? If so, it is more likely to be considered fair.
  2. Character
    • How is the work being used? Is the work being widely distributed? 
    • If a single copy is used for a permitted purpose, it is more likely to be considered fair. 
  3. Amount
    • How much of the work is being copied?
    • If the amount copied is trivial, the use is more likely to be considered fair. However, the Supreme Court of Canada has said it may be possible to deal fairly with an entire work. 
  4. Nature of the work
    • Was the work previously published? 
    • If the work is unpublished or confidential, the use is less likely to be considered fair. However, a court of law may also consider whether the copy serves a public interest. 
  5. Available alternative
    • Is there a suitable alternative to the work that is not protected by copyright? If so, the use is less likely to be considered fair. 
  6. Effect
    • Is the copy likely to compete with the market of the original? If so, the use is less likely to be considered fair.

Note: A use does not need to satisfy all of these factors do be considered fair.

Reference: CCH Canadian Ltd. v. Law Society of Upper Canada.

The Mash-Up Exception

The Copyright Act includes an exception that allows you to create a new work from existing works (in other words, a mash-up), provided:

  • The source of the existing work is given where reasonable
  • The existing work was legally acquired
  • The new work is for non-commercial purposes
  • The new work does not have a substantial adverse effect (financial or otherwise) on a current or potential market for the existing work

Reference: Copyright Act, Section 29.21 (Non-Commercial User Generated Content)

Seeking Permission

Some of these exceptions may no longer be available to you once you graduate or monetize a student project.

If your use is not covered by fair dealing or another exception in the Copyright Act, it doesn't necessarily mean you can't use the work. It just means you require permission from the copyright owner.

You can secure permission through a copyright collective society or by contacting the copyright owner directly. Copyright collectives are organizations that arrange licensing and collect royalties on behalf of creators in specific fields. 

If you receive permission, be sure to keep a record. 

Please note that the information provided on this site is for educational purposes and is not intended as legal advice.