What is Copyright Infringement

The Copyright Act states in section 27 that it is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.

Copyright is infringed when the whole or a substantial part of a copyrighted work has been copied without the consent of the copyright owner. Remember that a copyright owner has the exclusive right to reproduce or grant permission to reproduce. Therefore, the reproduction of a work without permission by the copyright owner is considered infringement unless it falls into one of the exceptions (e.g., fair dealing) or if permission is obtained from the copyright owner.

Case Examples

• Théberge v. Galerie d’Art du Petit Champlain Inc. (2002) – In this case, the Supreme Court ruled that transferring an image onto a new medium without altering the original expression did not constitute infringement. This case clarified the boundaries of reproduction rights.

• CCH Canadian Ltd. v. Law Society of Upper Canada (2004) – This landmark decision established fair dealing as a user’s right for purposes such as research and private study, setting a precedent for interpreting statutory exceptions in copyright law.

How Can You Avoid Infringing Copyright

• Obtain a License from a Collective Society

  • This is probably the easiest and most effective means.

  • The Copyright Act clearly states that the owner of copyright may assign or license copyright, either wholly or partially, and any assignment or license must be in writing. A license gives someone permission to use the work under certain conditions, which may include limitations on territory, rights, medium, market sector, or the term of the license. Section 13(4) of the Act covers this. Members of CANCOPY, now Access Copyright, have signed an agreement permitting Access Copyright to license their works on a non-exclusive basis. This means that while Access Copyright administers the rights on behalf of the copyright owner, the owner still retains copyright.

• Obtain License/Permission Directly from the Copyright Owner

  • In some cases, permission may already be provided in advance through a permission notice. Examples include:

    • Website notice (see handout on an example of the Ontario government website).

    • Access Copyright’s "Briefly" newsletter, which states that "Items may be reproduced by permission only, with credit to Access Copyright."

• By Regulation

  • Federal statutes, regulations, and the decisions of courts and tribunals can be copied without permission or payment of a fee.

  • The Reproduction of Federal Law Order states that "anyone may, without charge or request for permission, reproduce enactments and consolidations of enactments of the Government of Canada, and decisions and reasons for decisions of federally-constituted courts and administrative tribunals, provided due diligence is exercised in ensuring the accuracy of the materials reproduced and the reproduction is not represented as an official version."

• Standard Policies

  • The Government of Ontario has a standard policy on the copyright of legal materials. Although the Ontario government claims copyright in Ontario statutes, regulations, and judicial decisions, they allow copying without permission or charge as long as the following copyright notice is included:

    • © Queen's Printer for Ontario, [Year]. This is an unofficial version of Government of Ontario materials.

• Ensure the Copying Falls Under One of the Exceptions in the Act

  • Avoid copying a substantial part. Insubstantial copying does not constitute copyright infringement. For example, reproducing a quotation is probably considered an insubstantial taking, but copying a poem from a book of poems would be substantial. The Copyright Act does not define "substantial part," but courts have interpreted it through factors such as the quality and quantity of material copied, the effect on the copyright owner's activities, and whether the defendant intentionally used the work to save time or effort. For example, in the UR Tax Services case, courts examined whether the material taken served a similar purpose to the original.

  • The use of facts, ideas, or concepts is not an infringement of copyright. It is the expression of those facts, ideas, or concepts that grants copyright protection.

  • Ensure that the work is in the public domain before copying.

  • If unsure, avoid copying or seek legal advice.

• Don't copy a substantial part.

  • Insubstantial copying does not constitute copyright infringement. Eg. Reproducing a quotation is probably considered an insubstantial taking, but copying a poem in a book of poems would be considered substantial. The Copyright Act does not define what a "substantial part" is. The courts have defined a substantial part of a work as a question of fact in which both qualitative and quantitative factors must be considered. More emphases is given on the qualitative factors. Some of these factors include: the quality and quantity of the material taken, the extent to which the defendant's use adversely affects the plaintiff's activities and diminishes the value of the plaintiff's copyright, whether the material taken is the proper subject-matter of a copyright, whether the defendant intentionally appropriated the plaintiff's work to save time and effort; and whether the material taken is used in the same or similar fashion as the plaintiff's. (UR Tax services case).

• Using Facts & Ideas Is not Infringement - The use of facts, ideas or concepts is not an infringement of copyright. It is the expression of those facts, ideas or concepts which gives it copyright.

• Public Domain Works - Ensure that the work is in the public domain

• Don't copy

What Should You Do if Someone Informs You of an Incident of Infringement?

• Try to gather as much information as possible. Collecting evidence, receipts, and witness statements is crucial. Have the individual fill out a compliance complaint form to get as much detail as possible before referring them to compliance.

• Determine if the issue is related to rights that Access Copyright represents and if it falls within Access Copyright's jurisdiction (i.e., reproduction rights of published works).

• Check if the individual is licensed. If they are, refer them to licensing and confirm they haven't exceeded the limits of their license.

• If they are unlicensed, refer to compliance. Access Copyright may send a cease-and-desist letter, conduct investigations, and take other legal action with the copyright owner's consent if warranted.

• Follow up to see if they are interested in obtaining a license and provide educational resources on licensing.

What are the Remedies for Copyright Infringement

Remedies for copyright infringement can be either civil or criminal, with distinct consequences depending on the nature and severity of the infringement. Courts may award damages under various categories, including statutory damages, punitive damages, moral rights damages, and other heads of damages.

Civil Remedies

• Statutory Damages (Section 38.1)

  Section 38.1 of the Copyright Act allows the court to award statutory damages instead of actual damages in cases where precise financial losses cannot be proven. Statutory damages for commercial infringement range between $500 and $20,000 per infringement, while non-commercial infringement ranges between $100 and $5,000 for all infringements in a single proceeding.

  Example Case: In Telewizja Polska USA Inc. v. Echostar Communications Corp. (2004), the court awarded statutory damages of $10,000 per unauthorized broadcast of copyrighted materials, underscoring the importance of deterring future infringement.

• Punitive Damages

  Punitive damages are awarded to penalize the infringer for particularly egregious or malicious behavior, aiming to deter similar conduct in the future. Punitive damages may apply when the infringer has shown blatant disregard for the copyright owner's rights.

  Example Case: In Society of Composers, Authors and Music Publishers of Canada (SOCAN) v. Canadian Assn. of Internet Providers (2004), punitive damages were awarded because of the infringer’s willful violation of SOCAN’s rights.

• Moral Rights Damages (Section 14.1)

  Moral rights, under Section 14.1 of the Copyright Act, protect an author’s rights to attribution and integrity, preventing derogatory treatment that could harm the author’s reputation. Moral rights damages may be awarded if the work is altered, distorted, or used in a manner that affects the author's honor or reputation.

  Key Cases on Moral Rights Damages:

  • Prise de Parole Inc. v. Guérin, Éditeur Ltée (1995) – The court awarded moral rights damages after a publisher altered a poet’s work without permission, violating the poet’s right to integrity. This case established a significant precedent for protecting authors from unauthorized changes to their work.

  • Snow v. The Eaton Centre Ltd. (1982) – Michael Snow, a sculptor, successfully claimed moral rights infringement when the Eaton Centre in Toronto placed holiday decorations on his sculpture “Flight Stop” without his consent. The court found that adding the decorations violated Snow’s right to the integrity of his work, as the alteration compromised his original artistic vision.

  • Théberge v. Galerie d’Art du Petit Champlain Inc. (2002) – Although not directly awarding damages, the Supreme Court underscored moral rights by ruling that transferring an artist’s image to a new medium without altering the original artwork did not infringe copyright. This case clarified the boundaries of reproduction rights while emphasizing the importance of respecting moral rights.

  • Joseph v. Daniels (2012) – Artist Ivan Joseph successfully claimed moral rights infringement after a reproduction of his painting was altered and distributed in a way that damaged his reputation. The court held that moral rights protect an artist’s right to preserve the original integrity of their work.

• Other Heads of Damages

  • Actual Damages and Profits (Section 35)

    Section 35 of the Copyright Act permits copyright owners to claim actual damages for losses directly resulting from infringement, and to recover profits the infringer gained from the infringement.

    Example Case: In Euro-Excellence Inc. v. Kraft Canada Inc. (2007), Kraft claimed damages based on profits that Euro-Excellence earned from unauthorized use of Kraft’s copyrighted images on packaging, resulting in an award calculated on the company’s actual economic loss.

  • Account of Profits

    An account of profits allows the copyright owner to claim profits that the infringer made from unauthorized use of the copyrighted work. This remedy prevents the infringer from benefiting financially from the infringement.

    Example Case: In Michel v. Graydon Hall Apartments (1997), the court ordered the infringer to surrender profits made from unauthorized reproductions of copyrighted architectural drawings.

Criminal Remedies

• Fines (Section 42)

  Section 42 of the Copyright Act specifies criminal penalties for willful commercial infringement, including fines based on the extent and intent of the infringement.

  Example of Criminal Fines: A company that illegally distributed pirated DVDs was fined heavily, underscoring the seriousness of commercial piracy and its detrimental impact on copyright holders.

• Imprisonment (Section 42)

  Imprisonment may be imposed for serious or repeat offenses involving large-scale infringement, particularly for organized operations that cause substantial harm. Courts apply imprisonment to deter serious and systematic copyright violations.

  Example of Imprisonment: In cases of organized piracy involving large-scale counterfeit software distribution, courts have sentenced offenders to prison to signal the severe consequences of such violations.

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