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Debunking Common Copyright Myths of the Online World
Many copyright myths are rooted in the assumption that everything online is up for grabs, unless and until proven otherwise. The accessibility of images (and other files) through social media doesn't help to make the line of copyright infringement any less blurry; instead, it fosters a presumption that the Internet is a collection of photos, sounds, and multimedia files that are free for the taking and sharing.
Despite a recent increase in lawsuits cracking down on unauthorized downloads, copyright myths are still in widespread circulation. And, as mentioned above, these myths have the potential to lead the underinformed into infringing copyright—an act which can carry a large price tag. For this reason, it is worth debunking the most common copyright myths of the online world.
Myth #1: It's okay to use anything that doesn't have the ©
No. In Canada, copyright protection exists as soon as a work is created. Under Canadian copyright law, a copyright-protected work does not need to be registered and the symbol © is not required to appear on the work, nor is any other reference to copyright protection. Automatic protection of creative, original works is the law.
Myth #2: Anything online is in the public domain and therefore okay to use
No. Although posting a work online makes it available to the public, it does not transfer it into the public domain, nor does it remove copyright protection from the work.
A work typically enters the public domain when its term of copyright expires. As of December 30, 2022, the term of copyright in Canada changed to life-plus-seventy, an extension of 20 years from the former term of life-plus-fifty; that is to say, copyright protection now lasts for the duration of the lifetime of the author, plus 70 years from the end of the calendar year of their death. This extension is one of the amendments to the Copyright Act articulated in Division 16 of Part 5 of Bill C-19 The Budget Implementation Act, 2022, which received royal assent on June 23, 2022 and was implemented on December 30, 2022. Extending the copyright term fulfilled one of Canada's outstanding obligations under the Canada-United States- Mexico Agreement (CUSMA), which came into force on July 1, 2020, and brought Canada in line with its trading partners. The extension of the copyright term is not retroactive. If, for example, an author died on June 1, 1970, copyright in their works expired on December 31, 2020. Works protected by copyright on or after December 30, 2022 will receive an additional 20 years of protection. However, any works whose copyright expired before December 30, 2022, did not receive an additional 20 years of protection.
However, this general rule of copyright duration is subject to several exceptions, including ones for government works and works of joint authorship.
A work can also be in the public domain because it was ineligible for copyright protection in the first place, or because it was given to the public by the copyright owner. Occasionally, a copyright owner will make a declaration that use of their work may be made without permission or payment.
Myth #3: It's okay to use anything as long you don't profit from it
No. The absence of profit does not determine whether copyright infringement has occurred. The key question is whether you have the copyright owner's permission to use the work—if you don't have permission, you are likely infringing the author’s exclusive right, provided by the Copyright Act, to produce or reproduce the work or any substantial part of the work in any form.
The Copyright Act does provide exceptions, which allow for the use of a copyright-protected work without the owner's permission. One of these exceptions is "fair dealing", which may apply where the unauthorized use of the work is fair under the circumstances and is done for one of the purposes identified in the Act. The fair dealing purposes include research, private study, news reporting, criticism or review, education, and parody or satire. Each category of fair dealing is generally given a broad interpretation. For instance, “research” is not limited solely to educational institutions, and therefore commercial research can also be considered fair dealing.
However, determining whether the use or dealing with a work is "fair" will depend on the facts of each case and individuals should be wary of relying on these exceptions without the benefit of advice from an experienced intellectual property lawyer.
Other exceptions to infringement include copying for "private" purposes as defined in the Copyright Act. Additionally, some types of organizations may be subject to exceptions; this includes exceptions for charities and non-profits, which are discussed below.
Myth #4: It's okay for a charity or non-profit organization to use anything
No. Under Canadian copyright law, a charity or non-profit organization wishing to use another's work generally must obtain permission. The Copyright Act does provide some exceptions to this general rule, but they are narrow in scope; for example, some types of organizations may be subject to specific exceptions allowing limited use or reproduction of certain types of works, including educational institutions, libraries, archives and museums, along with religious, educational, charitable, and fraternal organizations.
Myth #5: It's okay to copy anything if I give credit
No. While the moral right to be recognized for creative work is protected under Canadian copyright law, crediting the author or creator is not enough to avoid copyright infringement. You must ask the copyright owner for permission to reproduce the work. Pursuant to section 3(1) of the Copyright Act, the copyright owner—and only the copyright owner—has the right to reproduce the work or authorize someone else to exercise this right, unless it comes under the limited exceptions discussed above.
Note: obtaining permission from an owner to use a copyright-protected work provides you permission in respect of the copyright; however, it does not provide you any permission regarding moral rights. In other words, clearing copyright does not mean that you have cleared the moral rights. Moral rights refer to the author’s right to the integrity of the work, to be associated with the work, or to remain anonymous. The author’s right to the integrity of the work means that the work may not be modified or used in association with a product, service, cause or institution to the prejudice of the author’s reputation. For example, the display of an animal rights activist’s painting of a family of minks in an ad campaign for real mink fur coats is likely to infringe the activist’s moral rights in the painting.
Myth #6: It's okay to use anything as long as I take it down when the copyright holder objects
No. The fact that you stop infringing or remove infringing content upon request does not change the fact that you infringed in the first place and the copyright owner may seek legal recourse against you. Cooperating with a copyright owner’s demand that you stop infringing activity may influence the amount of damages to which they are entitled if successful in a legal proceeding against you.
Myth #7: It's okay to use something if I can't find the copyright owner
No. You may only use a copyright-protected work if you have obtained permission from the owner or if you have an "unlocatable copyright owner" licence from the Copyright Board of Canada. You should document any effort you make toward finding and obtaining permission from the copyright owner, as this may be useful in applying for an "unlocatable copyright owner" licence. Note that these licenses, like most others, are made available for a fee. This fee goes to the collective society which would typically represent the author and, if requested by the author within 5 years of the expiration of the licence, is paid to them. Note further that such a licence will not be limitless but will dictate the terms under which use of the work is permitted.
Myth #8: A Creative Commons licence means you can freely use a work
No. Every Creative Commons licence allows for different uses without obtaining permission. It is imperative that you read the licence to see what is permitted. For example, certain licenses permit commercial use of the work, others are limited to non-commercial uses.
Myth #9: It's okay to copy 10 percent of a work without obtaining permission
No. Section 3(1) of the Canadian Copyright Act provides that the creator of a work has the "sole right to produce or reproduce the work or any substantial part thereof in any material form whatever". Users therefore have the right to copy insubstantial portions of copyright protected works without seeking permission.
However, note that substantial is not defined in the Copyright Act. The Act does not state any specific amount that you can copy without obtaining permission. Determining substantiality involves a nuanced analysis that considers both quantitative and qualitative aspects.
That said, a 2015 decision of the Copyright Board can be used as a general quantitative guideline to determine the meaning of "substantial", provided you are also mindful of the importance of qualitative aspects. In its decision, the Copyright Board considered that 1-2 pages—not to exceed about 2.5% of the whole work—or about 1 page of a 40-page document constitutes an insubstantial portion of a work.
Myth #10: It’s okay since I did not know I was infringing someone’s copyrighted work
No. You are responsible for determining whether a work is protected by copyright, who owns that copyright, and for obtaining the owner’s permission to use or copy the work. Ignorance of the copyright protection attaching to a work is not a defence against infringement. While section 39(1) of the Copyright Act does provide an exception to monetary damages where an infringer had no knowledge or no reasonable grounds to believe that a work was protected by copyright, an infringer cannot claim this exception without conducting proper due diligence into the source of the work. It is worth noting that images downloaded from internet browsers all provide a warning that such works may be protected by copyright, and claiming such an image was publicly available without conducting proper due diligence does not constitute a defence under section 39(1).
Myth #11: It’s okay since I bought the work I copied
No. Purchasing a work does not equate to purchasing the copyright therein, nor does it entitle you to any form of license to reproduce the work. While you may use a work you purchased for your own personal use, your rights in respect of the work are limited. Buying a work does not transfer or assign the intellectual property rights in and to a work from the copyright owner to you.
Quick tips to stay out of trouble
If you find the information above overwhelming, keep the following summary tips top of mind to stay out of trouble when engaging with original creative works:
- If you do not know whether a work is protected by copyright, make the inquiries required to find out;
- If a work is subject to copyright, don't reproduce it or take from it unless:
- You have 1) obtained authorization from the copyright owner; 2) the work is in the public domain; or 3) what you do with the work amounts to "fair dealing" (and remember that this assessment is, ultimately, a court’s to make, and a court may not draw the same conclusion); and you respect the moral rights of the author. If you have any doubts, consult an intellectual property lawyer before using someone else's work as obtaining legal advice in advance is always less costly than defending an infringement claim.
Have a copyright issue you are trying to solve? Contact us for a complimentary and confidential initial telephone appointment with a member of our team.
