Podcasting Legal Guide For Canada

Any negative effect on Rolling Stone magazine’s market or the band’s market for its music could cut against the fair dealing argument, though the podcasters might argue that the podcast promotes the Rolling Stone magazine article and band’s song, and that the podcast is not a replacement for either (of course, this would likely be costly and difficult to prove in a trial setting). Given the flexible application of the fair dealing doctrine, and that the burden lies on the podcaster to prove fair dealing, podcasters in this situation could be found to infringe.

!! 3.12  Finding “Podsafe” Content To Include In Your Podcasts Finding good content to use in your podcast and individually negotiating permission to use it can be a time-consuming task and may also be daunting if you are unsure if the rights-holder will agree to authorize the use of their content in your podcast.

One way to reduce the time and hassle of individually seeking permission from each rights-holder is to search for Creative Commons licensed material. CC-licensed material is “pre-cleared” for use in accordance with the terms of the applicable Creative Commons licence.

We explain at Section 3.8.2 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340033003300300030000000 – “Using Creative Commons Licensed Music 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340033003200390034000000 ” – about the different types of Creative Commons licences.

Below we explain how you can find and identify CC-licensed content that you may be able to use in your podcast.

3.12.1 Finding CC-Licensed Materials

Creative Commons licences are expressed in three formats: the human readable summary of the key terms (Commons Deed); the actual licence (Legal Code); and, finally Resource Description Framework metadata that describes the key licence elements in machine-readable format.

You can identify Creative Commons licensed content in two ways: either by looking for a human-readable statement that a piece of content is licensed under a Creative Commons licence.

This can include, for example a statement to the following effect: “This work is licensed under a Creative Commons Attribution 2.5 licence http://creativecommons.org/licences/by/2.5/���; And/or this may be indicated by the use of one of the Creative Commons licence buttons.

The licence buttons indicate what licence they point to by displaying the use restriction icons. To give you an idea of what this means, here are a few of the licence buttons:               You can use the search engine on the Creative Commons website to find content licensed under Creative Commons licences.

You can find the search engine at http://search.creativecommons.org/, where you can search for content on Google, Yahoo!, flickr, blip.tv, and other online services.

You can also find Creative Commons licensed content through the customized Yahoo! and Google searches that are available in the “Advanced Search” pages for both search engines.

The Yahoo! Advanced search (http://search.yahoo.com/search/options) page clearly illustrates how you can limit your search results to Creative Commons-licensed works.

In the Google Advanced Search page (http://www.google.com/advanced_search), by limiting your search according to “Usage Rights”, this will restrict your searching to find CC-licensed materials only.

There are also various content aggregator sites that offer a large amount of Creative Commons licensed works. These are listed at this page: http://wiki.creativecommons.org/wiki/Content_Curators. One thing to note about Creative Commons licensed content generally: you should be aware that all of the licences contain a disclaimer of warranties, so there is no assurance whatsoever that the licensor has all the necessary rights to permit reuse of the licensed work.

(Note: this applies to version 2.0 licences and up; the version 1.0 CC licences included a warranty of title). The disclaimer means that the licensor is not guaranteeing anything about the work, including that she owns the copyright to it, or that she has cleared any uses of third-party content that her work may be based on or incorporate.

This means that you should satisfy yourself that the person has all the necessary rights to make the work available under a Creative Commons licence. You should know that if you are wrong, you could be liable for copyright infringement based on your use of the work.

You should learn about what rights need to be cleared (such as for example publicity rights) and when a fair use or fair dealing defence may be available. 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.

!!! 3.12.2 Other Sites That Offer Podsafe Content See Section <span style="mso-field-code: " REF _Ref169543334 \\r \\h "">5 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340033003300330034000000 of this Guide, “Background and Further Resources 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340033003300350036000000 ”, for a listing of podsafe content providers.