Podcasting Legal Guide For Canada
For works created in Canada, you can also search the Canadian Intellectual Property Office (CIPO)’s register available at http://strategis.ic.gc.ca/app/cipo/copyrights/displaySearch.do?language=eng.
For more information about investigating the copyright status of a work, check out the CIPO’s Copyright Circulars (http://strategis.gc.ca/scmrksv/cipo/cp/cpcirc_main-e.html). Note, however, that CIPO will not verify ownership of copyright,<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"> so if you don’t find it there you should check with the author and/or the publisher.
!! 3.2 The Good News: 5 Instances Where Permission Is Not Required The good news is that you do not need to secure the separate permission of the provider of a work in five main instances.
These are: (i) when the items you record as part of your podcast are not protected by copyright (see below, Section <span style="mso-field-code: " REF _Ref169542101 \\w \\h "">3.2.1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003100300031000000 – “You Are Using A Fact, An Idea, A Theory Or Slogan, Title Or Short Phrase 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003100300031000000 ”); (ii) when the text was protected by copyright but is now in the public domain (see below, Section <span style="mso-field-code: " REF _Ref169542137 \\w \\h "">3.2.2 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003100330037000000 – “You Are Using Works That Are In The Public Domain 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003100330037000000 ”); (iii) to some extent, when you are using government works (see below, Section 3.2.3 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003100330038000000 – “You Are Using a Canadian Government Work 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003100330038000000 ”); (iv) when you are engaged in “fair dealing” of the work (see below, Section 3.11 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003200340033000000 – “Fair Dealing Under Copyright Law And Its Application To Podcasts 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003200370039000000 ”); (v) when you wish to make more than a “fair dealing” of the work and the work is under a Creative Commons licence that authorizes your intended use (see below, Section <span style="mso-field-code: " REF _Ref169542144 \\w \\h "">3.2.5 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003100340034000000 – “You Are Using Creative Commons-Licensed or “Podsafe” Content 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003100340034000000 ”).
3.2.1 You Are Using A Fact, An Idea, A Theory Or Slogan, Title Or Short Phrase
Although an entire textual work may be protected by copyright, there are elements of that work that may not be subject to the exclusive rights of the copyright owner.
It is a general principle of copyright law that copyright does not extend to ideas; that copyright law only protects the creative expression. As a result, you can discuss the ideas and theories that are discussed in a blog, an editorial or other opinion piece without asking the permission of the author or publisher (although you may want to think about defamation laws before you engage in especially harsh criticism of a theory or an author; see CIPPIC’s Defamation FAQ available at http://www.cippic.ca/en/faqs-resources/defamation/. Also, titles and short phrases or slogans will generally not be protected by copyright because they lack the necessary spark of creativity and so can typically be used without special permission.
(But these items may receive trade-mark protection. See Section 2.4 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003400310038000000 – “How Is Trade-mark Law Relevant? 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F005200650066003100360039003500340032003400310038000000 ” regarding trade-mark questions.) Finally, an idea is not protected by copyright.
Copyright protects the expression of an idea, but does not extend to protect ideas themselves. This protection in Canada stems from Article 9(2) of the TRIPS Agreement which incorporates this distinction, as it extends protection to expression (i.e. a form of expression covered under the definition of literary and artistic work) but specifically excludes “ideas, procedures, methods of operation or mathematical concepts.”<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 rule (called the “idea-expression distinction”) means, for example, that you can include in your podcast a discussion of factual events reported in a newspaper – such as facts about historical or current events – without obtaining permission from the copyright owner of the newspaper.
It also means you could describe and discuss cooking recipes in your podcast because they do not generally receive copyright protection. Recipes (the mere list of ingredients and instructions for combining the ingredients to achieve an end product) are seen as “a system, process or method of operation.” Copyright applies to the recipe as it is written, but the idea of using one ingredient instead of another is not protected by copyright.<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"> <span style="mso-bookmark: _Toc170033703">3.2.2 You Are Using Works That Are In The Public Domain You can use any work that is in the public domain without obtaining permission of the original author or copyright owner.
A work is in the public domain in Canada either when (a) the copyright term has expired, (b) the work is an unpublished work and special rules indicate it has fallen into the public domain, or (c) the author or copyright owner dedicated the work to the public domain.