Podcasting Legal Guide For Canada
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According to the Court in CCH, <p class="BlockQuote" style="margin-top:5.0pt;margin-right:1.0in;margin-bottom: 5.0pt;margin-left:1.0in"><span lang="EN-CA" style="font-size:9.0pt;mso-bidi-font-size: 12.0pt">“If multiple copies of works are being widely distributed, this will tend to be unfair.
If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing. If the copy of the work is destroyed after it is used for its specific intended purpose, this may also favour a finding of fairness.
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It may be relevant to consider the custom or practice in a particular trade or industry to determine whether or not the character of the dealing is fair.”<span lang="EN-CA" style="font-size:11.0pt;mso-bidi-font-size: 12.0pt"><span lang="EN-CA" style="font-size:11.0pt;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"> <p class="MsoBodyText" style="margin-left:.25in;text-indent:-.25in;mso-list:l29 level1 lfo34; tab-stops:list .25in">c) Amount The quantity of the work taken will not be determinative of fairness, but it can help in the determination.<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"> The amount taken may also be more or less fair depending on the purpose.
<p class="MsoBodyText" style="margin-left:.25in;text-indent:-.25in;mso-list:l29 level1 lfo34; tab-stops:list .25in">d) Alternatives Alternatives to dealing with the infringed work may affect the determination of fairness.
If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court,<a style="mso-endnote-id: edn42" href="file:///U:/Documents/2006%20Kaplan-Myrth%20Consulting/Creative%20Commons/Podcasting%20Legal%20Guide/Podcasting%20Legal%20Guide%20for%20Canada.doc#edn42" name="ednref42" 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"> and a determination of whether the activity was “reasonably necessary” should also be made.
<p class="MsoBodyText" style="margin-left:.25in;text-indent:-.25in;mso-list:l29 level1 lfo34; tab-stops:list .25in">e) Nature The nature of the work in question should also be considered by courts assessing whether a dealing is fair.
“Although certainly not determinative, if a work has not been published, the dealing may be more fair in that its reproduction with acknowledgement could lead to a wider public dissemination of the work – one of the goals of copyright law.
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If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair.”<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"> <p class="MsoBodyText" style="margin-left:.25in;text-indent:-.25in;mso-list:l29 level1 lfo34; tab-stops:list .25in">f) Effect Finally, the effect of the dealing on the work is another factor warranting consideration when determining whether a dealing is fair.
If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair.<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"> This factor must also be considered with close attention to the details of the specific fact situation, as the amount of copyrighted work used and the way in which it is used could influence the effect the activity has on the original work, and subsequently, whether or not the activity is fair.
</a>I loved the idea of reflecting on what we have ameicploshcd. So many times the tendency is to focus on all that we'd didn't do.Trusting ourselves comes easier when we focus on the accomplishments. Then we can build on those things rather than filling our minds with the things we haven't done and building on that concept. Mahalo for writing this reminder about the upcoming year and our plans.Another big Mahalo for the shout out on the video. I try to practice acting like this as much as possible! It makes for a very good feeling most days. Reply</a>
Finally, fair dealing for the purposes of criticism, review, or news summary requires one to mention the source and, if given in the source, the author.
3.11.1 Two Misconceptions About Fair Dealing
(a) Acknowledgement Is Not Enough. Some authors have the erroneous belief that an acknowledgement will immunize a copyright infringement as “fair dealing.” This is a myth.
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Including an acknowledgement may be considered in analyzing the six factors, but it is by no means is a clear defence to a claim of infringement. (b) Disclaimers Are Not Enough Either. Another point of confusion is whether an upfront disclaimer that denies any association between the podcast and the copyrighted material can protect the podcaster from liability.
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For example, assume your podcast is a parody of the “Corner Gas” television show. You include a disclaimer at the beginning of your podcast in which you state: “This podcast is not associated with or endorsed by CTV.” This sort of disclaimer will not, by itself, protect you from a claim of copyright infringement, or act as a clear defence to such a claim.
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It will, however, be considered among the factors the court considers, and in a very close case, a court may look positively on a clear statement of disassociation.
(Note, however, that including a clear disclaimer can help with potential trade-mark infringement situations. See Section <span style="mso-field-code: " REF _Ref169542418 \\r \\h "">2.4 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003400310038000000 of this Guide, “How Is Trade-mark Law Relevant? 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003400310038000000 ”, for further information about trade-mark law.) For more information about fair dealing and the differences between Canadian and US copyright law exceptions, see the Canadian Internet Policy and Public Interest Clinic (CIPPIC)’s Copyright Law FAQ at http://www.cippic.ca/en/faqs-resources/copyright-law/.
3.11.2 Examples Of Fair Dealing That May Apply In Podcasting
To help illustrate the way these factors may play out in the podcasting context, it may help to consider a few examples: Example 1: A book group organized by a high school teacher podcasts its meeting discussing J.D. Salinger’s Catcher In The Rye.
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The members discuss the book, read short portions of it aloud, and criticize and comment on the author’s style, the storylines, and the like. The podcast is posted on the book group’s blog site, which is hosted by the high school.
Karl Sound Recorder? BWHAHAHAHAHAHA!!!Sorry I don't mean to laugh.Oh man, that is funny I hadn't seen that article beofre. That's hilarious 60 second clips on sound recorder, right There are only 3 programs I would use for this type of project. Wavelab, Cakewalk, or Soundforge. I have all three of them. I'll add to their list a bit, if your cassette collection is close to mine, you're going to need to do some documenting with it, so a notebook and a pen with a lot of ink would be a great idea. That way as your going through your pile you can check off what is what. The pain is going to be the hard drive space prior to the burn. And average wav file at 48 khz, stereo for 60 minutes worth of recording is going to be roughly 1.4 GIG's as a wav; if recorded straight through. I wouldn't want to do it as a straight through recording because the audio packages aren't going to like buffering such a large file and the hard drive will likely explode. Breaking it up into 10 minutes per session seems more realistic to me. That's where noting on the notepad what's recorded on each tape will come in handy. I would do all the recordings dry (without effects) and once the sound levels are ok, I'd take the wav files and covert them to mp3 which will be more manageable to deal with. I'm guessing the One tape at a time, approach would be best unless you have a ton of disk space on your computer to work with. If you end up with 13 recordings per tape; which for me is realistic with the way I used to record on cassettes, you could dump all of that onto one CDR disc and still have a little space left over. So I'm guessing if you were to dump it all to a DVD you could fit 4 (maybe 5) CDR sessions to that in DATA format, but I think the CDR route would be much cheaper with CDR disc's being cheaper in the pack of 50 s.The only hard thing to figure out is TIME. I'm thinking just doing one tape conversion using the method I just described would take 3 hours easily. (Including the setup, the stopping, documenting, etc)X's that by 50 tapes, 150 hours. Also I think giving each tape it's own catalog # that you make up would go a long way in the documenting process. If your tapes are like mine some of them don't even have labels, even though I know pretty much what's on them once I start listening. So some cheap white labels cut to size would help as well. A project of this size for me, would take about 6 months, but get that nagging monkey off my back about worrying I'm going to lose all those cool memories of the earlier days of songwriting, and guitar playing with friends and the times I sat alone in my room at home with mom popping in occasionally telling me to Turn it down!!! Hmmmm, still wondering how you turn down an acoustic guitar. In your case, 150 hours might as well be 150 years when you have a little one running around vying for your attention
The site includes no advertising and generates no revenue. Conclusion: This would likely be fair dealing.
It's because you revcieed the message. Cell phone companies charge you for sending and receiving messages. Even if you didn't read the message, you still revcieed it, so you get charged.
Example 2: A podcaster uses the copyrighted music of pianist George Winston for the intros and outros of her podcast that is about yoga and meditation. The podcast has nothing to do with commenting or critiquing the music played.
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Conclusion: This is likely not fair dealing. Example 3: A 10-minute podcast includes a group of music fans discussing a recent copyrighted article in Rolling Stone magazine about a new band.
One fan reads 4 paragraphs of the 6-paragraph article and comments on its analysis of the band. Another fan plays a 1-minute segment of the band’s copyrighted song, which is 2 minutes in length.
The fan then discusses the music as it compares to other music in the genre. The fans post the podcast on a fan website where advertising is sold, and the fans receive revenue for their podcast.
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Conclusion: This commentary/criticism by the fans in response to the article and song suggests “fair dealing”, but the commercial/profit aspect of the site where the podcast is being distributed raises concern, as does the amount of the article and song taken in comparison to their overall length.