Podcasting Legal Guide For Canada
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You also do not need permission if you’re making a comparative advertisement (however, comparative ad situations often provoke trade-mark owners into legal action even when their trade-mark claims are weak especially if your statements about their product and your claims regarding your product are not wholly accurate). You will need permission if you’re making a commercial use of the mark.
You may also identify the trade-mark of another (such as your employer or former employer) if the reference is accurate and does not cause confusion. For example, “I am Sobert Roble, and I work for SicroMoft” is acceptable if the context does not falsely suggest that the employer (here, SicroMoft) endorses the podcast.
But using a title for a podcast such as “SicroMoft’s Sobert Roble Speaks Out On The Issues” may suggest endorsement by the employer, and should therefore be avoided if that is not the case.
One other thing to remember is that you are not under an obligation to identify each and every trade-mark as a “registered” trade-mark. You can even use a trade-mark in the title of your podcast as long as it is not the title of series of podcasts.
So, for example, you can title a single podcast “TRADE-MARK ATTRIBUTION FOR DUMMIES” and not violate the trade-mark in the “For Dummies” books (see http://www.schwimmerlegal.com/archives/2006/02/trade-markattri.html). Check out the Canadian Intellectual Property Office’s website for Trade-mark FAQ’s, as well as their database so you can find registered trade-marks yourself.
!!! 2.4.3 A Note About Using Trade-mark Disclaimers If you use a trade-mark in a commercial context in your podcast, it is a good practice to include a reference to registered trade-marks of others in your show notes (if you have them) as well as in the podcast itself.
A statement along these lines would suffice: “[YOUR TRADE-MARK] is a trade-mark of [YOUR NAME]. All other trade-marks mentioned are the property of their respective owners.” You may also check with the company whose trade-marks you reference and read its trade-mark use policy typically found on its website.
While using a disclaimer does not immunize you or clear your rights to use a particular trade-mark in a commercial context, it can help to show your good faith.
!! 2.5 What Other Issues Should I Be Thinking About? As a podcaster, you will face many of the same legal questions that bloggers face. EFF’s Legal Guide to Blogging (http://www.eff.org/bloggers/) addresses many additional issues that you should consider.
These include: rights in the United States related to the Digital Millennium Copyright Act (DMCA) and the Communications Decency Act (aka “Section 230”), on-line defamation, privacy, reporter’s privilege, media access, election law, and labour law.
The EFF Guide is written in the context of US law so you should be careful about directly relying on it Canada. While there is currently no comparable document for Canadian bloggers, you can contact CIPPIC if you have any legal questions and they may be able to help point you in the right direction.
3 Copyright Issues
The bulk of this Guide focuses on copyright issues that may arise both when you are sourcing content and creating your podcast and when you are releasing your own recorded podcast.
Copyright is a complex area of the law that has become further complicated as it has been adapted to accommodate new technologies. This section opens with a discussion of what copyright is and when it does not apply.
Since podcasters need to know how to get licences for third party sound recordings that they want to include in their podcasts, this section attempts to clarify the various layers of copyright ownership and the collective societies that manage licensing for each of those layers.
Finally, there is a discussion of how you might find works licensed under Creative Commons licences that you can use in your podcasts without securing licences from the collective societies.
3.1 Using Written Content Created By Someone Else: Permission Is Generally Required As a general rule, if you incorporate text that has been written by someone else into your podcast-text that appears either on a blog, in a book, a journal, magazine or newspaper (or wherever) you will need the express and specific permission of the person who owns copyright in that material (note that sometimes the copyright owner is different than the original writer). Written works do not have to be full of flourish and artistic merit, like novels and poetry, to qualify for copyright protection.
Textual works only need minimal creativity to attract copyright protection. Under Canadian law, the level of creativity required is non-mechanical and non-trivial effort, skill and labour.<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"> This means most textual works that are committed to paper (or computer), including those that lack literary merit such as, for example, institutional reports, newspaper articles and unimaginative blog postings, are likely to be protected by copyright.
There is no firm “rule” about how much of a work you may or may not copy to avoid infringement concerns. The Copyright Act says that liability will occur on the taking of a “substantial part” of a work.
Substantiality, however, is a question that is related more to the quality than the quantity of the work that was taken. Three things are considered in determining substantiality: (1) whether the copyright owner demonstrates ownership of a copyright in a protected work, (2) whether there is objective similarity between that work and the allegedly infringing work, and (3) whether the person copying the work had access to the original work, which will be presumed if the work was publicly available.<a style="mso-endnote-id: edn11" href="file:///U:/Documents/2006%20Kaplan-Myrth%20Consulting/Creative%20Commons/Podcasting%20Legal%20Guide/Podcasting%20Legal%20Guide%20for%20Canada.doc#edn11" name="ednref11" title=""><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"> This means that it generally does not matter if you read the entire piece aloud without changing it or if you change it a lot and simply base your podcast loosely on the text – you cannot avoid copyright issues by, for example, changing the work by, say, 10% or 20%. Once you use the work, either in verbatim or altered format, you implicate copyright law.
Consequently, you need to think about copyright issues before you incorporate any of these materials into your podcast. In general, this means that you need to identify the copyright owner and ask them for permission to include their material in your podcast.
You can often identify who the copyright owner is by checking for a copyright notice (usually in the form “© [year] [name]”) or you can ask the person who published the work for the information.