Podcasting Legal Guide For Canada

This means that when you come across such a work, as a general rule and subject to some exceptions noted in Sections 3.2 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340031003800350035000000 – “The Good News: 5 Instances Where Permission Is Not Required 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340031003900350032000000 ”, 3.3 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340031003900300037000000 – “Special Rules For Librarians Or Teachers 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340031003900360036000000 ” and 3.11 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340031003900340031000000 – “Fair Dealing Under Copyright Law And Its Application To Podcasts 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340031003900380030000000 ”, you should assume that it is protected by copyright.

Copyright law gives the owner of copyright the exclusive right to control certain activities in relation to the work. For example, under Canadian law, a copyright owner has the exclusive right to produce or reproduce the work, or any substantial part thereof.<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">[2] This means the copyright owner has the right to exclude others from making copies of their work, making changes to it, distributing it to the public or making a public performance of it.

Consequently, any person other than the copyright owner who wishes to do any of the protected acts in relation to the work must secure permission from the copyright owner before doing so, unless an exception or exclusion applies.

When you make a podcast that includes third party content, you potentially tread upon several of copyright’s exclusive rights, such as: <p class="MsoBodyText" style="margin-left:.5in;text-indent:-.25in;mso-list:l27 level1 lfo35; tab-stops:list .5in">a)       Copying the work to include it in a podcast; <p class="MsoBodyText" style="margin-left:.5in;text-indent:-.25in;mso-list:l27 level1 lfo35; tab-stops:list .5in">b)       Adapting or changing the work to include it in the podcast; <p class="MsoBodyText" style="margin-left:.5in;text-indent:-.25in;mso-list:l27 level1 lfo35; tab-stops:list .5in">c)       Communicating a work to the public by telecommunication as part of a podcast for transmission to members of the public; and <p class="MsoBodyText" style="margin-left:.5in;text-indent:-.25in;mso-list:l27 level1 lfo35; tab-stops:list .5in">d)       Authorizing members of the public to make a copy of the podcast and use it according to the terms you apply to the podcast.

This Guide sets out some of the issues that need to be considered to identify whether you own the necessary copyright and/or have the appropriate permission so that you do not infringe someone else’s copyright.

Learn more in Section 3 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003000300039000000 – “Copyright Issues 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003000320032000000 ”. <span style="mso-bookmark: _Toc170033693"><span style="mso-bookmark: _Ref169543105"><span style="mso-bookmark: _Ref169542613">2.3       Why Are Publicity Rights Relevant? Publicity rights allow individuals to control how their voice, image or likeness is used for commercial purposes in public.

While Canada doesn’t expressly recognize publicity rights, the concept is protected under the tort of misappropriation of personality. This is relevant to podcasting because, in many instances, a podcaster will conduct audio or video interviews, perform plays, sing songs, and produce all sorts of other spoken or visual content.

When transmitting this sort of content, including the voices or images of anyone other than yourself, you may need to get permission from those individuals if you are using their voice or images for commercial purposes.

For example, if you have images from an interview with someone on your website and you use those images to promote your podcast, solicit advertising, or make other commercial uses, you may need consent from the individual appearing in the image.

Rights of publicity are a common law concept in Canada, closely associated with the tort of misappropriation of personality, which “involves taking aspects of someone else’s personality (such as a name, reputation or likeness) for commercial gain without that person’s permission.”<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">[3]  While the elements of the tort have not been clearly laid out, an analysis of <span lang="EN-CA" style="mso-bidi-font-size: 10.0pt">Krouse, and subsequent case Athans,<span lang="EN-CA" style="font-size:12.0pt;mso-bidi-font-size: 10.0pt"><span lang="EN-CA" style="font-size:12.0pt;mso-bidi-font-size: 10.0pt;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">[4] indicates that an individual must show that there was merely an “identifiable use” of their image in conjunction with a commercial product without their consent.

This means that if you use another image, likeness or voice as a way of advertising or soliciting your podcast, you will need the individual’s consent. On its face, this seems much like the doctrine of rights of personality in the US. Where the tort of misappropriation of personality departs from this doctrine, however, is in the determination of the public interest, articulated as the “subject vs.

sales” distinction in <span lang="EN-CA" style="mso-bidi-font-size: 10.0pt">Gould<a style="mso-endnote-id: edn5" href="file:///U:/Documents/2006%20Kaplan-Myrth%20Consulting/Creative%20Commons/Podcasting%20Legal%20Guide/Podcasting%20Legal%20Guide%20for%20Canada.doc#edn5" name="ednref5" title=""><span lang="EN-CA" style="font-size:12.0pt;mso-bidi-font-size: 10.0pt"><span lang="EN-CA" style="font-size:12.0pt;mso-bidi-font-size: 10.0pt;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">[5] where the court held that if the person whose name was being used was the subject of the work and there was a public interest in having the information, then the tort of misappropriation of personality could not be made out.