Podcasting Legal Guide For Canada

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! 4 Legal Issues Surrounding How You Distribute Your Podcast You may license your work through either an “implied” or an “express” licence.

An “implied licence” in copyright is a licence created by law based on the circumstances that surround how the work is made available when there is no actual agreement between you and the licensee.

An implied licence is usually merely a licence to use the work and does not confer an interest in it. An “express licence” means you have expressly stated the terms of the licence in some written form.

An express licence may involve merely permitting use of your work, or could take the form of a Creative Commons licence, or could involve the sole or exclusive assignment or transfer of either the whole copyright or partial rights, and must be in writing.<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">[45] The only right that cannot be assigned is the moral rights associated with the work, though those rights can be waived.<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">[46]

4.1 Implied Licences

An implied licence might occur when your actions indicate that you (the copyright owner) extended a licence to those using your podcast, but you never created a written licence.

In an implied licence, you may never have agreed on specific terms of the licence. The purpose of an implied licence is to allow the licensee (the party who is using your podcast) some right to use the podcast, but only to the extent that you would have allowed had you negotiated an actual agreement.

Generally, the custom and practice of the community are used to determine the scope of the implied licence. There are no clear definitions or established legal rules to handle the situation of an implied copyright licence in all cases, especially as it relates to new technology like podcasting.

Because implied licences leave many open questions about copyrights, it’s best to be express about the terms under which you wish to license your podcast. Specific options to consider for express licences are discussed in the next section, Section 4.2 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340033003300390031000000 – “Express Licences 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340033003300390034000000 ”.

4.2 Express Licences

You have many options in terms of the exact type of express licence you choose to apply to your podcast.

If you are a lawyer or know a lawyer, they can generally prepare a licence or terms of use that reflect your specific preferences as to how other people use your podcast.

!!! 4.2.1 Applying A CC Licence To Your Podcast Before you apply a Creative Commons licence to your podcast, you first need to consider the legal issues outlined in this Guide.

You can only apply a Creative Commons licence to your podcast if you are the creator of all of the materials included in your podcast or if you have the express permission of the creator or copyright owner of materials included in your podcast to license their materials under a Creative Commons licence.

It is possible for example, to apply a Creative Commons licence to some elements of your podcast (e.g. your interviews and general talking) but not others (e.g. third party music to which you only have a limited licence). In that case, it is important that you clearly identify which components of your podcast are under a Creative Commons licence and which parts are not.

In addition, this page provides you with an overview of some of the issues you may wish to think about before you apply a Creative Commons licence to your podcast: http://creativecommons.org/about/think.

Some of the benefits of applying a CC licence to your podcast are that it can help to clearly indicate and clarify the permitted terms of use to your listeners, for example, whether you are happy for them to mashup your podcast or not; and also, if you include the Creative Commons metadata, your podcast can be readily found through Yahoo! and Google customized CC-searches if incorporated properly.

Creative Commons metadata can be incorporated in a podcast in one or all of three different locations: · Incorporation in the webpage(s) that host the podcast.

This will enable uses of the Yahoo! and Google Creative Commons-customized search and other CC-enabled search engines to discover your podcast. · Incorporation in the podcast syndication feed(s), which will enable those services that are eager to promote curated and fully legal audio feeds, of which there are many, to do so.

· Embedding in the podcast mp3 files.

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