Area of Law: Intellectual Property
Answer # 324
Copyright infringement and fair dealingRegion: Ontario Answer # 324
Copyright infringement occurs when someone copies work, or performs or displays a work in public, without the permission of the owner. One common example of copyright infringement is plagiarism, which involves copying someone else’s work and claiming that it is your own. The Canadian Intellectual Property Office will not prevent other people from infringing your copyright. It is up to the owner of the copyright to ensure that no one else copies, publishes, or performs their work.
In 2012, new copyright legislation, called the Copyright Modernization Act, was introduced. This new law has prohibited:
- the circumvention of digital locks, even for legal purposes, such as for education purposes where reproduction of a protected work is allowable,
- the manufacturing, importing and sale of technologies, devices and services designed primarily for the purpose of breaking digital locks.
In addition, the new legislation absolves Internet service providers from liability for copyright infringement if they are acting only as intermediaries in the provision of their communication, caching, and hosting functions. This exception does not apply if:
- the service provider is the provider of a service that a person knew or ought to have known is designed primarily to enable acts of copyright infringement and actual infringement results,
- a web host has knowledge of a court decision that states the stored material is an infringement of the owner’s copyright.
It may not be an infringement of copyright to quote or copy small parts of a work, if it is for private study, review, research, or criticism, or if it is a newspaper or broadcast summary. Using someone else’s work this way may be called “fair dealing”. The new copyright legislation expanded the scope of the fair dealing exception to specifically include education. Now, an educational institution, for education or training purposes, can:
- reproduce work in order to display it (unless it is available for sale within a reasonable time and price in a format appropriate for training or education purposes),
- perform a film or cinematographic work in the classroom, as long as such work is not an infringing copy and was legally obtained,
- reproduce, communicate by telecommunication and perform for students, works that are available through the Internet, provided that the works are legitimately posted and that the source and author are attributed. Exceptions to this include: works protected by digital locks, where a clearly visible notice prohibiting such an act is posted on the work itself or the website, or where the educational institution knew or ought to have known that the work was illegally placed on the Internet in violation of the copyright owner’s rights.
Other exceptions to copyright infringement exist as well. For example, under certain conditions the performance of a copyrighted work by a religious organization, school, museum, archive or charitable body is not an infringement. People with “perceptual” disabilities may also make a copy of works (except movies) and convert them into a new format that can be used for their own private purposes.
Personal use exceptions:
Section 29 of the new law, allows for three new fair dealing exceptions:
1. Non-commercial user-generated content: This exception, sometimes called the mash-up, allows a consumer the right to use, for non-commercial purposes, a published work to create a new work, provided that the source and author are identified, that the original work or the copy was legally obtained, and that there is no substantial adverse effect on the exploitation of the original work. For example, someone could take parts of a video or movie and combine them together to create a new video.
2. Copy a protected work from one device to another: This allows a consumer, for private purposes, to copy any work if the source copy was legally obtained. For example, if someone buys a song from iTunes, they can download in onto their computer and then transfer it to their iPod without infringing copyright laws.
3. Record programs for later listening or viewing: Individuals are legally permitted to fix a communication signal, or reproduce a work, sound record or performance being broadcast in order to privately view the work at a later time. However, the signal must be obtained legally, only one recording must be made, the recording must be used for private use, and the recording must not be given away. This exception does not apply to works or sound recordings that are made available through an on-demand service, or to works protected by digital locks (a technological measure, such as encryption or digital signatures, used to restrict access to, or prevent the copying or playing of, CDs, DVDs, e-books, digital files and so on).
What to do if someone infringes your copyright
If someone infringes your copyright, you may want to take legal action. If the infringement is proven, the court can order them to stop using your copyright and to pay you compensation. If the infringement is very serious, criminal charges may be laid according to the Copyright Act. A summary conviction under the Act could bring a maximum fine of $25,000 and/or up to six months in jail; while a conviction by indictment could lead to a maximum fine of $1 million and/or up to five years in jail. Compensation for “statutory damages” is also available. This allows the copyright owner to recover $500 to $20,000 per work infringed without having to prove that any actual losses occurred.
Non-commercial use: In the case of a non-commercial infringement, the copyright holder may be awarded anywhere from $100 to a maximum of $5,000. A cap of $5,000 was placed on non-commercial infringements to ensure that Canadians will not face disproportionate penalties for minor infringements.
To register a copyright in Canada, refer to the Canadian Intellectual Property Office.
For legal assistance if someone has infringed your copyright, or for other intellectual property matters, contact our preferred lawyers and see who’s right for you:
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