Podcasting Legal Guide For Canada

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According to the Court in CCH, “If multiple copies of works are being widely distributed, this will tend to be unfair.

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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;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">[40] 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">[41] The amount taken may also be more or less fair depending on the purpose.

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d) Alternatives Alternatives to dealing with the infringed work may affect the determination of fairness.

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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">[42] and a determination of whether the activity was “reasonably necessary” should also be made.

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e) Nature The nature of the work in question should also be considered by courts assessing whether a dealing is fair.

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“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">[43] f) Effect Finally, the effect of the dealing on the work is another factor warranting consideration when determining whether a dealing is fair.

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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">[44] 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.

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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.

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(Note, however, that including a clear disclaimer can help with potential trade-mark infringement situations. See Section 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.

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The site includes no advertising and generates no revenue. Conclusion: This would likely be fair dealing.

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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.

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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.

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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.

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