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It is an infringement in
Canadian copyright law The copyright law of Canada governs the legally enforceable rights to creative and artistic works under the laws of Canada. Canada passed its first colonial copyright statute in 1832 but was subject to imperial copyright law established by Britain ...
for any person to do, without the consent of the owner of the
copyright A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...
, anything that only the copyright owner has a right to do as covered in the ''Copyright Act.''


Introduction

The copyright owner's rights are listed in Section 3(1) of the ''Copyright Act''. In order to assess whether this section of the ''Act'' has been infringed, the following three questions must be addressed: # What is
copying Copying is the duplication of information or an artifact based on an instance of that information or artifact, and not using the process that originally generated it. With analog forms of information, copying is only possible to a limited degree o ...
? # What constitutes a substantial part? # How can copying be proven?


What is copying?

''Théberge v. Galerie d’Art du Petit Champlain Inc.''
002 002, 0O2, O02, OO2, or 002 may refer to: Fiction *002, fictional British 00 Agent *''002 Operazione Luna'', *1965 Italian film *Zero Two, a ''Darling in the Franxx'' character Airports *0O2, Baker Airport *O02, Nervino Airport Astronomy *1996 ...
2 S.C.R. No. 336 A copyright holder’s
economic rights Economic, social and cultural rights, (ESCR) are socio-economic human rights, such as the right to education, right to housing, right to an adequate standard of living, right to health, victims' rights and the right to science and culture. Econ ...
will be infringed where an unauthorized copy is made of a
work Work may refer to: * Work (human activity), intentional activity people perform to support themselves, others, or the community ** Manual labour, physical work done by humans ** House work, housework, or homemaking ** Working animal, an animal tr ...
or a substantial part thereof. The majority in Theberge, aiming to strike a balance between the rights of copyright holders and parties with legally acquired proprietary interests, found multiplication to be of necessary condition of infringement and held that no actionable reproduction had taken place in this case. However, applying a broader reading of this decision, it may be that multiplication is a necessary condition but not necessarily a sufficient condition. It is unclear whether an infringement would have been found if a second copy of the
poster A poster is a large sheet that is placed either on a public space to promote something or on a wall as decoration. Typically, posters include both typography, textual and graphic elements, although a poster may be either wholly graphical or w ...
had been made.
Metaphorical A metaphor is a figure of speech that, for rhetorical effect, directly refers to one thing by mentioning another. It may provide (or obscure) clarity or identify hidden similarities between two different ideas. Metaphors are often compared with ...
reproduction or translation (ex. from book to film) may constitute reproduction, but in this case, a paper-to-canvas translation does not. The image contained on the original poster was physically removed from one substrate, transferred, and finally affixed to another substrate, leaving the original paper blank. The process began and ended with only one copy of the poster. ''Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers'', 004S.C.J. No. 44 The issue in this case was the creation of temporary cache copies of website data by
internet service provider An Internet service provider (ISP) is an organization that provides services for accessing, using, or participating in the Internet. ISPs can be organized in various forms, such as commercial, community-owned, non-profit, or otherwise private ...
s (ISPs) as a means of speeding up the process that takes place when users access a website. While in this case, copies were made, the court found that these copies did not constitute an infringement or attract liability. Under s.2.4(1)(b) of the Act, it reads as follows: "(A) person whose only act in respect of the communication of a work or other subject matter to the public consists of providing the means of
telecommunication Telecommunication is the transmission of information by various types of technologies over wire, radio, optical, or other electromagnetic systems. It has its origin in the desire of humans for communication over a distance greater than that fe ...
necessary for another person to so communicate the work or other subject matter does not communicate that work or other subject matter to the public." While this does not cover situations in which ISPs do more then merely communicate—i.e., where they make copies—the court holds that allowing such action to attract liability would produce an absurd result. The court cites the
content neutrality Network neutrality, often referred to as net neutrality, is the principle that Internet service providers (ISPs) must treat all Internet communications equally, offering users and online content providers consistent rates irrespective of co ...
of the caches and the demand for such technology as reasons for allowing such copies to be made without liability. ''Satellite Radio'' (Statement of Royalties to be Collected by SOCAN, NRCC and CSI in Respect of Multi-Channel Subscription Satellite Radio Services, Copyright Board of Canada,
009 009 may refer to: * OO9, gauge model railways * O09, FAA identifier for Round Valley Airport * 0O9, FAA identifier for Ward Field, see List of airports in California * British secret agent 009, see 00 Agent * BA 009, see British Airways Flight 9 * ...
In this case, the Copyright Board held that while temporary buffer copies do qualify as copies, the duration and form of the copies was such that they did not constitute a substantial part of the works in question and therefore did not attract liability. In reaching this conclusion, the court adopted the proposition set out in Canadian Admiral which held that for a work to be protected by the Act, it must be expressed in some material form capable of identification and having a more or less permanent endurance. Ultimately, the Board found that while ephemeral copies satisfy the “material form” requirement, the buffer copies were totally unrecognizable as audio files and therefore did not meet the requirement that they be capable of identification. The Board’s decision on the material form element left several questions unanswered. The Board seems to suggest that the duration requirement set out in Canadian Admiral no longer applies as ephemeral copies do not, by their nature, have a more or less permanent endurance. Further, the Board does not require that copies be capable of being seen or retrieved, a requirement that would seem to follow the definition of EROS-Equipe, where the Federal Court had defined material form based on its ordinary meaning, namely palpable, tangible and perceptible –a definition adopted by the Board.


What is a substantial part?

The ''Copyright Act'' does not require that an entire work be copied in order to find that a copyright holder’s rights have been infringed. Copying a substantial part of the work will be sufficiently actionable. In determining whether a substantial part of a work has been copied, the court must exclude from consideration any part of the work not properly the subject matter of copyright under s.3 of the Act. The analysis is largely fact-driven, and the courts will consider both qualitative and quantitative matters. Some of the matters that have been considered include: (a) how central was the element taken to the first work? (b) do the selected parts constitute an essential characteristic of the work? (c) would people who see the copy recognize the source? (d) was the part taken used in a manner that would create a substitute to the first work and thereby jeopardize its economic exploitation? conomic damages can be considered ''Hawkes & Sons (London) Limited v. Paramount Film Service'', Limited
934 Year 934 ( CMXXXIV) was a common year starting on Wednesday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * Spring and Summer – The Hungarians make an alliance with the Pecheneg ...
1 Ch. 593 (C.A.) In this case, a 20-second segment of a 4-minute song, played in background of a news clip, was found to be substantial. One of the reasons for this finding was the recognizable nature of the song –there was no doubt that anyone who knew the song would be able to identify it in the clip. The court held that the producer of the
newsreel A newsreel is a form of short documentary film, containing news stories and items of topical interest, that was prevalent between the 1910s and the mid 1970s. Typically presented in a cinema, newsreels were a source of current affairs, informa ...
should have obtained the permission of the copyright holder. The court struggled with the issue of whether requiring a
news agency A news agency is an organization that gathers news reports and sells them to subscribing news organizations, such as newspapers, magazines and All-news radio, radio and News broadcasting, television Broadcasting, broadcasters. A news agency may ...
to acquire permission would hamper the production of news but ultimately found that the
plaintiffs A plaintiff (pi (letter), Π in List of legal abbreviations, legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the co ...
had copyright and should have been asked and/or compensated for the use of their work. This case gave raise to a legislative response seen in s.30(7)Copyright Act, RS 1985, c C-42, s 30(7). which permits the incidental and not deliberate inclusion of a work in another work. License Application by ''Pointe-à-Callière, Montreal Museum of Archeology and History for the Reproduction of Quotations'', Copyright Board of Canada 00533 C.P.R. (4th) 426 In this case, a
museum A museum ( ; plural museums or, rarely, musea) is a building or institution that cares for and displays a collection of artifacts and other objects of artistic, cultural, historical, or scientific importance. Many public museums make these ...
requested a license to reproduce quotes whose authors could not be located. The Board denied the museum licenses on the basis that the quotes were not substantial parts of the greater work. Substantiality is to be determined qualitatively and quantitatively based on how much was copied, what specifically was reproduced and how central or essential the material was to the character first work. Further considerations include whether the public would be able to recognize the source of the copy and whether the copy would create a substitute to the first work, thereby jeopardizing its economic viability. License Application by ''Breakthrough Films & Television'', Copyright Board of Canada 005File 2004-UP/TO-33 In this case, the Copyright Board found that quotes reproduced in a
History Channel History (formerly The History Channel from January 1, 1995 to February 15, 2008, stylized as HISTORY) is an American pay television network and flagship channel owned by A&E Networks, a joint venture between Hearst Communications and the Disney ...
documentary were substantial. The quotes themselves were relatively short and extracted from a book that was several hundred pages long, thus quantitatively unsubstantial. However, a qualitative analysis of the quotes led the Board to conclude that by using the quotes, the film would appropriate the author’s knowledge, time and talent, elements that reflected an exercise of the author’s skill and judgment. The sections of the book in question were original expressions of the facts and events and involved both creativity and literary merit. While this clearly establishes the work’s originality, there is some uncertainty as to whether it also establishes whether the quotes “substantial” nature in relation to the rest of this book.


Proof

Where there is
direct evidence Direct evidence supports the truth of an assertion (in criminal law, an assertion of guilt or of innocence) directly, i.e., without an intervening inference. A witness relates what they directly experienced, usually by sight or hearing, but also p ...
or an admission, there will be no question about copying but without these giveaways, it can be very difficult to prove copying. If courts look at two works and find that there is substantial similarity between them and there is proof the alleged copier had access to the ‘original’ work, copying will be presumed. This presumption is rebuttable.


References

{{Reflist Canadian copyright law