Knitter's Guide to Copyright: Copyright Basics
The Knitter's Guide to Copyright: Copyright Basics
D. How can others use a copyrighted work (or, when is use not infringement)?
1. By not copying a substantial part of the work
2. By engaging in fair dealing
3. By seeking permission beforehand for non-fair dealing uses
5. When copyright overlaps industrial design protection
1. By not copying a substantial part of the work
The public has the right to use a copyrighted work, as long as they do not do not infringe the copyright owner’s rights. Thus, permissible uses include:
reading a literary work (because a copy is not made)
using the work to find primary sources of information (for example, using a history textbook to find references to a specific topic, so that you can write your own work on that subject)
making something that written instructions instruct you to do (although there are limits on what you can do with what you made; see, for example, the answer to FAQ E.2)
No prior permission from the copyright owner is required for any of these uses (this is by no means an exhaustive list).
2. By engaging in fair dealing
It is not copyright infringement to reproduce part of a work for one of the following purposes:
research or private study
news reporting
criticism or review
These purposes are described in sections 29, 29.1, and 29.2 of the Copyright Act and are collectively referred to as fair dealing.
Research or private study is restricted to the individual user. A user may be permitted to make a working copy of a document, but that copy cannot be used for anything else.
For the purposes of news reporting or criticism or review, the source of the work must be given, and, where possible, the name of the author must be given.
Not only must the purpose of the copying be one of the three listed above, but the amount taken in the copying must be fair as well. One cannot reproduce the entire contents of a book or a pattern, for example, and claim an exception for criticism or review because comments are interspersed throughout the copied text.
Under U.S. copyright law, there are exceptions to copyright infringement called “fair use”. U.S. fair use generally thought to be more generous to users than Canadian fair dealing; for example, under fair use, it is permissible under some circumstances to reproduce a copyrighted work for the purpose of parody. No such parody exception is recognized under Canadian law. Therefore, if a use is permissible in the United States, it does not follow that this same use would be permissible in Canada.
3. By seeking permission beforehand for non-fair dealing uses
If a use of a copyrighted work without prior consent would result in infringement, then the user may always seek permission for this use. This permission must be sought from the copyright owner or the person who has the authority to give this permission. In some situations, it may be the author or an agent. In the case of a published work, such as a book, journal, or article, it may be the publisher, or a collective agency representing the publisher.
4. By implied licence
In some situations, the relationship between the copyright owner and the user results in implicit permission being granted to the user for certain activities that normally might be considered infringement. Both the copyright owner and the user must be aware of this practice or relationship. For example, a designer who publishes a pattern for a jacket might own copyright in the original jacket for which the pattern was developed, but by publishing the pattern, implicitly gives permission to the user to reproduce the jacket. (This follows logically; after all, what is the purpose of a pattern?)
However, simply because permission may be implied for one activity does not mean that permission was also granted for another activity. A user of the pattern might be impliedly permitted to make one, two, or three copies of the jacket; but this implied permission probably does not extend to selling these copies of the jacket in a commercial enterprise. How far this implied permission goes will depend on the facts of each case.
5. When copyright overlaps industrial design protection
The Copyright Act provides exceptions for infringement in cases where the work in question strays from copyright to the realm of industrial design.
According to section 64 of the Act, if a design is applied to a “useful article”, it is not an infringement of copyright or moral rights in the design or the artistic work from which the design was derived by making the useful article, or by making a drawing or other material reproduction of the article, if the owner of copyright in the artistic work or design, anywhere in the world, authorizes the reproduction the useful article in a quantity of more than fifty.
It is also then not an infringement to do with the reproduced article or other reproduction anything that the copyright owner had the sole right to do with the underlying design or artistic work.
This exception does not apply in the case of graphic or photographic representations applied to the face of an article, trade-marks or labels, material with a woven or knitted pattern, material that is suitable for piece goods or surface coverings, material that is suitable for making wearing apparel, architectural works, representations of real or fictitious beings, events, or places, or articles sold as a set of fifty or less.
Section 64 is an attempt to reduce duplication of intellectual property protection for works that are properly within the scope of industrial design. The works that qualify for this exception, generally, are the sorts of works that would qualify for industrial design protection. Section 64 of the Copyright Act forces the author to choose the proper form of protection for her work. Otherwise, it would be possible for an author to unfairly extend her design protection (which lasts only 10 years) for an indefinite period of time (the term of the copyright).