Podcasting Legal Guide For Canada

It could be that the licensor is relying on the fair use or fair dealing doctrine but, depending on the circumstances, that legal defence may or may not actually protect her (or you). You should educate yourself about the various rights that may be implicated in a copyrighted work, because creative works often incorporate multiple elements such as, for example, underlying stories and characters, recorded sound and song lyrics.

If the work contains recognizable third-party content, it may be advisable to independently verify that it has been authorized for reuse under a Creative Commons licence.

In addition, you may need to think about what other rights may attach to the content you wish to use, such as trade-mark or publicity rights.

3.3       Special Rules For Librarians Or Teachers

It should be noted that there are special rules for using copyrighted works in the context of teaching and for libraries.

In general, these rules allow for performance and display of certain copyrighted works in the face-to-face classroom setting. While there is a specific regime for distance learning in the US (under the “TEACH Act”),  protection for educators in Canada appears limited to uses of works on the premises of the educational institution.

Librarians also have special rights with respect to archiving, research and study. The details of these case-specific rules are beyond the scope of this Guide at this time.

Suffice it to say that if you are using a podcast in a classroom setting (either face-to-face or through distance learning), or if you’re a librarian, you should look into these special rules.

For further information see sections 29.4 to 30.4 of the Copyright Act (RSC 1985 c. C-42), http://laws.justice.gc.ca/en/C-42/index.html and check out the Canadian Library Association’s Copyright Resources website at http://www.cla.ca/resources/copyright.htm.

!! 3.4       Using Your Own Written Content If you create your own creative, expressive material for use in your podcast, you should, as a general rule, have no issues in terms of copyright clearances.

If you are the creator of a sufficiently original work, then you will generally also be the first owner of copyright in that work once you have committed pen to paper, hit “save” or “record” and thus, able to exercise any and all of copyright’s exclusive rights as you choose.

It is, however, important to be aware that there are circumstances in which, even though you are the creator of a copyrighted work, you may not be the “author” or first owner of copyright.

In Canada, there are three key exceptions to the rule that the author is the first owner of the copyright in a work: (i) employees paid to “create”; (ii) photographs and similar works; and (iii) works created at Her Majesty’s request.

Additionally, you may not be the sole author or sole owner of copyright if you transferred or assigned your rights to someone else, or if you created a copyrighted work in collaboration with someone else.

In the employment context, the general rule is that the employer will be considered the first owner of the copyright in any work created by the employee in the regular course of their employment, unless there is an agreement to the contrary, or unless that employee is an independent contractor.<span lang="EN-CA" style="font-size:12.0pt;font-family: "Times New Roman";mso-fareast-font-family:"Times New Roman";mso-ansi-language: EN-CA;mso-fareast-language:EN-US;mso-bidi-language:AR-SA;mso-bidi-font-weight: bold">[26] Sometimes it is not clear whether one is an employee is under a “contract of service” or an independent contractor under a “contract for service”. To help make that determination, courts will consider (1) the property of the tools, (2) control or direction (relationship of subordination), (3) whether the author assumes all or part of the business risk (loss or profit), and (4) the degree of integration of the author into the business of the “employer”.<span lang="EN-CA" style="font-size:12.0pt;font-family: "Times New Roman";mso-fareast-font-family:"Times New Roman";mso-ansi-language: EN-CA;mso-fareast-language:EN-US;mso-bidi-language:AR-SA;mso-bidi-font-weight: bold">[27] In the context of photography, the situation is further complicated in two ways.

First, the author of a photograph is the owner of the “plate” or the owner of the initial photograph when it was taken, and may not necessarily be the photographer.

This is important because the term of copyright is calculated based on the author’s life, and moral rights are held by authors, not necessarily copyright owners.

There is some discussion as to authorship of digital photographs which no longer require a plate. While it is argued that a technologically neutral interpretation of the Act would assign ownership to the owner of the memory stick of a digital camera, it is unclear how the rules in the Act apply to digital photographs.

The other complicating factor for photographs is that if the photograph is commissioned then the person who pays for it is by default the first owner of the copyright in the photograph, and is therefore the person who can give a license in the photograph.

The third situation where the creator of a work may not be the first owner of the copyright in that work is works that are created at Her Majesty’s request. The general rule is that the government owns the copyright in these works.

See the above section on Crown Copyright for more information. Someone other than you can also become the copyright owner of your work by an express written agreement, signed by you, transferring ownership of the copyright.<a style="mso-endnote-id: edn28" href="file:///U:/Documents/2006%20Kaplan-Myrth%20Consulting/Creative%20Commons/Podcasting%20Legal%20Guide/Podcasting%20Legal%20Guide%20for%20Canada.doc#edn28" name="ednref28" title=""><span lang="EN-CA" style="font-size:12.0pt;font-family: "Times New Roman";mso-fareast-font-family:"Times New Roman";mso-ansi-language: EN-CA;mso-fareast-language:EN-US;mso-bidi-language:AR-SA;mso-bidi-font-weight: bold">[28] Consequently, if you have signed away your rights to your work you may no longer be free to incorporate it in your podcast.

Similarly, if you have given another party an exclusive licence to reproduce or perform your work, then you do not have the right to do so yourself. Finally, where your work was done in collaboration with someone else and the parts are not distinct from each other, the rules of joint-authorship apply.<span lang="EN-CA" style="font-size:10.0pt;mso-bidi-font-size: 12.0pt;font-family:"Times New Roman";mso-fareast-font-family:"Times New Roman"; mso-ansi-language:EN-CA;mso-fareast-language:EN-US;mso-bidi-language:AR-SA; mso-bidi-font-weight:bold">[29] Where an agreement was signed between the joint authors, you will need to check the terms to see if you are able to freely exercise your rights as a joint author/owner and incorporate it into a podcast or whether you need the permission of your co-author.

As a general rule, you must get the consent of all joint authors to use such works, to grant a licence for use. Where one or more of the joint authors is deceased, their rights will pass to their beneficiaries as opposed to the surviving authors.

This means you may have to get consent from the beneficiaries.

3.5       Incorporating Pre-Existing Audio Voice Recordings

If you wish to incorporate pre-existing audio voice recordings that have been prepared by someone else, you need to think about both copyright and publicity rights issues.

Copyright and the property right in one’s voice are discussed here. For publicity rights, see the discussion in Section 2.3 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003600310033000000 of this Guide – “Why Are Publicity Rights Relevant? 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003600320037000000 ”. With respect to audio recordings, there are potentially three layers of copyright that must be cleared before the recording can be used.

To use an audio voice recording created by someone else, you need to make sure you have the necessary permissions to use both if you want to include it in your podcast.