Copyright Infringement

What is Copyright Infringement?

“Infringement” is the legal term used to denote a violation of copyright law, which means doing any of the things or exercising any of the rights which only the copyright owner may do, without consent of the copyright owner (see our fact sheet on copyright). Ignorance, good faith or lack of intention to violate a copyright is generally no excuse—indeed, even subconscious copying may be a violation, although in certain contexts ignorance is a possible defense (more detail below under “secondary infringement”). The most widespread kind of copyright infringement is copying part or all of a copyrighted work without permission.

Concrete examples include appropriating the work of another or substantial parts of it, and passing it off as one’s own (commonly referred to as plagiarism), and the illicit duplication of legitimate works such as reprinted books, computer software, songs, etc. (which is what we call piracy).

Violation of the right to produce or reproduce

It is only the copyright owner who may reproduce or authorize a reproduction of the copyrighted work, or substantial part of it, or make any “colourable imitation,” and anyone who does any of these without the permission of the copyright holder is infringing copyright.

Violation of copyright is fairly obvious if a text is copied word-for-word or a song note-for-note, but where portions are added and omitted, each case must be examined on its own facts, and various aspects are taken into account such as the quality and the quantity of the portions used from the original work.

An imitation may be colourable when details have been varied so as to disguise what is otherwise a reproduction. This is still considered wrong even if not an exact copy. Again, the line isn’t always clear, and in order to assess whether a work is a colourable imitation of another, courts will have to inquire into the content to establish whether there is “a ‘definite’ or ‘considerable’ similarity such that an ordinary person comparing the works might think that perhaps one came from the other.”[1]  Whether something is a colourable imitation will therefore hinge on the particulars of each case as well. In any event, it is key to understand that in determining whether there has been copyright infringement, the court will focus on the similarities between the two works, not the differences.

Secondary infringement

Secondary infringement is basically violations that are indirect, and concerns certain commercial activities such as selling infringing copies of a copyrighted work. Essentially, the Copyright Act says that copyright is violated by any person who sells, rents, distributes, exhibits or imports a work that infringes copyright if the person knew about it or reasonably should have known. Unlike “direct infringement”, here knowledge is relevant, and the violator may plead ignorance. However, such a defense will be unlikely to succeed where copyright is clearly marked on the work.

Violation of moral rights

A violation of moral rights occurs where any act or omission is done contrary to any of the moral rights in the absence of consent by the author (again, see our fact sheet on copyright). Because moral rights are grounded in the honour and reputation of the author of a work, a moral rights violation will typically result from modifying a work, or associating it with a cause or product, in such a way as to hurt the honour or reputation of the creator. It may also be as simple as omitting the author’s name on the work.

Exceptions to infringement

There is no copyright on ideas, so merely using an idea cannot be a violation of copyright. Rather, what is protected is the particular form or expression in which the idea is cast. Hence there is no violation where two people create similar works as long as each work is created on its own, and the creators were not in contact with each other’s work.

However, acts that otherwise would constitute copyright violation will be allowed in specific contexts. Under section 29, the Copyright Act provides that any “fair dealing” with a copyrighted work for purposes of private study, research, criticism, review or news reporting is not infringement as long as it was not carried out with a view to make monetary gains. However, in the case of criticism, review, or news reporting, the user is required to give the source and the author’s, performer’s, sound recording maker’s or broadcaster’s name, if known.

Nothing in the Copyright Act delimits how much of a work can be used in such “fair dealing” situations, but the dealing must, of course, always be fair. What does that mean exactly? Here, too, the line isn’t clear, and common sense is required. For instance, an author said that “in considering whether a dealing with a particular work was fair, it would have to be considered whether any competition was likely to exist between the two works; a newspaper summary of an article in a rival paper would probably be restrained.”[2]

The Copyright Act also makes exceptions for particular classes of users: non-profit educational users and non-profit libraries, archives and museums, for instance, have exceptional “rights to copy,” subject to some restrictions.

Remedies available to the copyright owner

Remedies for copyright infringement include financial compensation (e.g., to cover lost profits) and injunctions to make the violation stop. In some instances, the violation may amount to criminal behaviour and result in severe fines and even imprisonment. But there is often no need for drastic measures—an amicable settlement or just a letter demanding that the infringer put an end to the violating conduct (called a “cease-and-desist letter”) may well solve the problem.

For more information

For more information on copyright infringement, the following two books are very useful:

  • Canadian Copyright Law by Lesley Ellen Harris (2001)
  • Le droit de la propriété intellectuelle by Daniel Gervais and Elizabeth F. Judge (2006)

References

[1] University of Toronto Law Journal, Winter 2006: Putting the Community in Communication: Dissolving the Conflict between Freedom of Expression and Copyright by Carys J. Craig

[2] Excerpt from the book The Law of Copyright by Copinger, as cited by the Exchequer Court of Canada in the case Zamacoïs v. Douville.