Exceptions to Copyright Infringement

by Talia Huculak

Generally speaking, copyright gives the individual who owns the rights to a work the exclusive ability to dictate how it is reproduced, performed, or published and under what conditions. However, there are certain exceptions to this rule under the Canadian Copyright Act. Underpinning these exceptions is the recognition in Canadian copyright law that users’ and creators’ rights are equally important.

Fair Dealing Provision

Fair Dealing is an exception that allows individuals to use copyright-protected materials under two conditions:

(1) Purpose of Use

Firstly, the use of the copyright-protected materials must be for one of the following purposes:

  • Research
  • Private study
  • Education
  • Parody
  • Satire
  • Criticism or review
  • News reporting

For some of these exceptions, certain additional special requirements must be met, including providing credit to the original source of the work. For further information, users should carefully read Sections 29 and following of the Copyright Act, available here: https://laws-lois.justice.gc.ca/eng/acts/C-42/page-8.html#h-103270

(2) Fairness of Use

In addition, the copyright-protected work must be used in a way that is considered “fair.” This determination of fairness will be made by a court, according to the following 6 criteria:

  • The goal of using the copyrighted work;
  • The manner in which the copyrighted work was dealt with (including the number of copies made, and the extent of the dissemination of the work);
  • The amount of the copyrighted work used (only a reasonably necessary amount of copying will be permitted);
  • Whether alternatives to the use of the copyrighted work exist (if a non-copyrighted equivalent exists, or if the new work would have been equally effective had it not reproduced copyrighted material, this may work against the person claiming fair dealing);
  • How publicly available the new work will be;
  • The effect of using the copyrighted work (for instance, if the new work will compete with the copyrighted material, it may be seen as an unfair use);

Non-Commercial User-Generated Content Exception

Another notable exception under the Canadian Copyright Act is colloquially known as the “mash-up exception” or “YouTube exception.”

This exception permits user-generated content that is created by combining together a number of pre-existing works (such as a mash-up of video clips from many different sources).

In order to qualify for this exception, the user-generated content must:

  • Be created for non-commercial purposes;
  • Mention the source, as well as the author, performer, maker, or broadcaster of the pre-existing works being used if it is reasonable to do so;
  • The YouTuber or artist benefitting from the exception had reason to believe that the original works were not infringing copyright; and
  • Be different enough from the original copyrighted works to avoiding harming their value, including not being a substitute for any of the original works.

Artists should be aware that some unwanted uses of their work might fall under one of the exceptions set out in the Copyright Act. On the other hand, artists may also be able to benefit from one of these exceptions in creating their own works.