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Copyright infringement and fair dealing

Copyright infringement arises in circumstances where a person copies, performs, or displays a copyrighted work in public without the permission of the owner. A popular example of copyright infringement is plagiarism. Plagiarism occurs when someone copies someone else’s work and then attempts to claim it as their own. The Canadian Intellectual Property Office cannot prevent other people from plagiarizing or infringing copyrights therefore it is the copyright owner’s responsibility to ensure that no one else is copying, publishing, or performing their work.

In 2012, the federal government introduced the new Copyright Modernization Act. This new piece of legislation prohibited the following:

  • The evasion of digital locks even for legal purposes related to education where reproduction of a protected work is permissible, and
  • Manufacturing, importing, and selling new technologies, devices or services specifically for the purpose of breaking digital locks.

Additionally, the new Copyright Modernization Act completely absolves Internet Service Providers (ISPs) from potential copyright infringement liability if they are simply acting as the intermediary because of their communication, caching, and hosting functions. Nonetheless, this exception does not apply if:

  • The ISP provided service and knew, or should have known, that the service was being used primarily to conduct copyright infringement; or,
  • The web host knew that a court decision held that the stored material is a known infringement of the owner’s copyright.

Fair dealing:

Fair dealing includes circumstances where an infringement of copyright is permissible if it is simply a quote or copy of small parts of a work or if it is for private study, review, research, criticism, newspaper or broadcast summary. The new copyright legislation expanded the legal definition of fair dealing to also include education. As a result, an educational institution, for educational and training purposes, can now do the following:

  • Reproduce copyrighted work for the purpose of display (unless the copyrighted work is available for sale within a reasonable amount of time and it is priced in an appropriate manner for training/education purposes),
  • Perform a copyrighted film or cinematographic work in the classroom, as long as the work is not an infringing copy and it was legally obtained,
  • Reproduce, communicate by telecommunication and perform for students, copyrighted works that are available on the Internet, so long as the works are legitimately posted and the source and author have been credited.
    • Exceptions to this rule include works protected by digital locks, where a clearly visible prohibition notice is posted on the work itself or on the website, or where the educational institution knew, or should have known, that the work was illegally put onto the Internet in violation of the copyright owner’s legal rights.

Another example of an exception to copyright infringement is the performance of copyrighted works by a religious organization, school, museum, archive, or charitable body. These types of acts would not be considered an infringement. Additionally, people who have “perceptual” disabilities may be able to make a copy of works (except movies) and transform them into a new format to be used for private purposes only.

What should I do if someone infringes my copyright?

You should immediately considering commencing legal action. If the court proves an infringement, you can obtain a court order to have the individual stop using your copyrighted work and pay you compensation. If the infringement is serious, the court may even lay criminal charges pursuant to the Copyright Act. A summary conviction offence under the Act can result in a maximum fine of $25,000 and/or up to 6 months imprisonment. An indictable offence under the Act can result in a maximum fine of $1 million and/or up to 5 years imprisonment. Compensation can also be ordered for “statutory damages”. This category of damages allows the copyright owner to recover $500 to $20,000 per work infringed without having to prove that they suffered any actual losses.

Non-commercial use:  In these types of infringement cases, the copyright holder may be awarded anywhere between $100 to $5,000. A legislative cap was placed on these types of awards to ensure that Canadians would not face overly harsh penalties for minor infringements. If someone has copied your work without your permission, you should contact a lawyer as soon as possible to canvass your legal options.

Read more:

Canadian Intellectual Property Office