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Copyright in Canada

Part 2: Copyright Infringement

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So far this copyright primer has explained what copyright is, how long copyright exists and the additional steps you can take for copyright protection. This page deals with copyright infringement and what to do about it.

What is copyright infringement?

Legally, copyright infringement occurs when someone does something that falls within the exclusive rights of the copyright holder. The most common type of copyright infringement is copying part or all of a copyrighted work without permission.

The Copyright Act lays out permissible exceptions to copyright infringement in its section on fair dealing. “The Copyright Act provides that any "fair dealing" with a work for purposes of private study or research, or for criticism, review or news reporting is not infringement. 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” (Canadian Intellectual Property Office). If you read the Copyright Act, you’ll notice that there are no specifics about how much of a work can be used for these purposes, such as a particular number of lines or paragraphs.

Notice that “fair dealing” is not the same thing as “fair use”. “The Canadian concept of “fair dealing” should be distinguished from the American concept of “fair use”, as the latter expression is broader in scope and the former restricted to the purposes mentioned in the Copyright Act” (Fair Dealing in Canada, Laurent Carrière, lawyer and trademark agent).

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 certain restrictions. (See the Copyright Act for details.)

What are the remedies for copyright infringement?

In the best case scenario, when copyright infringement occurs, action such as a cease and desist letter solves the problem. However, if the parties involved can’t reach an amicable settlement, it may be time to take the offenders to court. “Remedies for copyright infringement include awards of damages or injunctions to prohibit infringing conduct. Copyright owners can opt to receive damages based on actual damages suffered, including lost profits, or prescribed statutory damage amounts. In addition, the Copyright Act creates criminal offences and imposes penalties which include, for indictable offences, fines of up to $1 million and imprisonment for a maximum of five years” (IPIC).

In summary, copyright protection is automatic in Canada when you create an orginal work. However, because there are so many people who copy works without permission, you may want to take additional steps to let them know your work is copyrighted. After all, policing your copyright rights is up to you.

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