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Debunking Common Copyright Myths of the Online World

By: Christopher Heer and Mala Milanese | Last updated: January 15, 2019
When dealing with copyright issues for the first time, it is easy to be bombarded by myths and urban legends. Although much of this misinformation is spread by well-meaning people, it often encourages behaviour that is both illegal and potentially costly.

Many copyright myths are rooted in the assumption that everything online is up for grabs, unless and until proven otherwise. The accessibility of images (and other files) through social media doesn't help to make the line of copyright infringement any less hazy; instead, it fosters a presumption that the Internet is a collection of photos, sounds, and multimedia files that are free for the taking and sharing.

Despite a recent increase in lawsuits cracking down on unauthorized downloads, copyright myths are still in widespread circulation. And, as mentioned above, these myths have the potential to lead the underinformed into infringing copyright—an act which can carry a large price tag. In light of this, it is worth debunking the most common copyright myths of the online world.

Myth #1: It's okay to use anything that doesn't have the ©

No. In Canada, copyright protection exists as soon as a work is created. Under Canadian copyright law, a work does not need to be registered and the symbol © is not required to appear on the work, nor is any other reference to copyright protection. Automatic protection is the law.

Myth #2: Anything online is in the public domain and therefore okay to use

No. Although posting a work online makes it available to the public, it does not transfer it into the public domain, nor does it remove copyright protection from the work.

A work typically enters the public domain when its term of copyright expires. In Canada, the copyright for a work generally expires 50 years after the death of the creator, at the end of the relevant calendar year. However, this general rule of copyright duration is subject to several exceptions, including ones for government works and works of joint authorship.

A work can also be in the public domain because it was ineligible for copyright protection in the first place, or because it was given to the public by the copyright owner. Occasionally, a copyright owner will make a declaration that use of their work may be made without permission or payment.

Myth #3: It's okay to use anything as long you don't profit off of it

No. The absence of profit does not determine whether copyright infringement exists. The key question is whether you have the copyright owner's permission to use the work—if you don't have permission, you are likely infringing.

The Copyright Act does provide exceptions, which allow for the use of a copyright-protected work without the owner's permission. One of these exceptions is "fair dealing", which may apply where the unauthorized use of the work is fair under the circumstances and is done for one of the purposes identified in the Act. The fair dealing purposes include research, private study, news reporting, criticism or review, education, and parody or satire. Determining whether the use or dealing with a work is "fair" will depend on the facts of each case.

Other exceptions to infringement include copying for "private" purposes as defined in the Copyright Act. Additionally, some types of organizations may be subject to exceptions; this includes exceptions for charities and non-profits, which are discussed below.

Myth #4: It's okay for a charity or non-profit organization to use anything

No. Under Canadian copyright law, a charity or non-profit organization wishing to use another's work generally must obtain permission. The Copyright Act does provide some exceptions to this general rule, but they are narrow in scope; for example, some types of organizations may be subject to specific exceptions allowing limited use or reproduction of certain types of works, including educational institutions, libraries, archives and museums, along with religious, educational, charitable, and fraternal organizations.

Myth #5: It's okay to copy anything as long as I give credit

No. While the moral right to be recognized for creative work is protected under Canadian copyright law, crediting the author or creator is not enough to avoid copyright infringement. You must ask the copyright owner for permission to reproduce the work. Pursuant to section 3(1) of the Copyright Act, the copyright owner—and only the copyright owner—has the right to reproduce the work or authorize someone else to exercise this right, unless it comes under the limited exceptions discussed above.

Note: obtaining permission from an owner to use a copyright-protected work provides you permission with regard to the copyright; however, it does not provide you any permission regarding moral rights. In other words, clearing copyright does not mean that you have cleared the moral rights.

Myth #6: It's okay to use anything as long as I take it down when the copyright holder objects

No. The fact that you stop infringing does not change the fact that you infringed in the first place.

Myth #7: It's okay to use something if I can't find the copyright owner

No. You may only use a copyright-protected work if you have obtained permission from the owner or if you have an "unlocatable copyright owner" licence from the Copyright Board of Canada. You should document any effort you make toward finding and obtaining permission from the copyright owner, as this may be useful in applying for an "unlocatable copyright owner" licence.

Myth #8: A Creative Commons licence means you can freely use a work

No. Every Creative Commons licence allows for different uses without obtaining permission. It is imperative that you read the licence to see what is permitted.

Myth #9: It's okay to copy 10 percent of a work without obtaining permission

No. Section 3(1) of the Canadian Copyright Act provides that the creator of a work has the "sole right to produce or reproduce the work or any substantial part thereof in any material form whatever". Users therefore have the right to copy insubstantial portions of copyright protected works without seeking permission.

However, note that substantial is not defined in the Copyright Act. The Act does not state any specific amount that you can copy without obtaining permission. Determining substantiality involves a nuanced analysis that considers both quantitative and qualitative aspects.

That said, a 2015 decision of the Copyright Board can be used as a general quantitative guideline to determine the meaning of "substantial", provided you are also mindful of the importance of qualitative aspects. In its decision, the Copyright Board considered that 1-2 pages—not to exceed about 2.5% of the whole work—or about 1 page of a 40-page document constitutes an insubstantial portion of a work.

Quick tips to stay out of trouble

If you find the information above overwhelming, keep in mind the following tips to stay out of trouble:

  1. If you do not know whether a work is protected by copyright, inquire into it.
  2. If a work is subject to copyright, don't reproduce it or take from it unless:
    • You have 1) obtained authorization from the copyright owner; 2) the work is in the public domain; or 3) what you do with the work amounts to "fair dealing"; and
    • You respect the moral rights of the author or creator.
  3. If you have any doubts, consult an intellectual property lawyer before using someone else's work as obtaining legal advice in advance is always less costly than defending an infringement claim.