Legally Using Content

AuthorLesley Ellen Harris
ProfessionLawyer, author, and educator
Legally Using Content
I don ’t necessarily agree with everything I say.
—Marshall McLuhan (1911–1980)
The “Use” of Copyright Materials
People who want to use copyright materials (or content) often think
that because a certain work is protected by copyright, that work cannot
be used. This is a false assumption. When a work is protected by copy-
right, that work may be used in a variety of ways; however, any use (at
least those covered by the Copyright Act) must be authorized by the
copyright owner, or by a representative of the copyright owner (unless
that right is subject to an exception as discussed in Chapter 10). This
chapter deals with obtaining authorization or permission to use mate-
rials protected by copyright. When the term use is seen in this book,
it refers to the use of copyright material in the copyright sense of the
word. For instance, use may refer to a reproduction of a work or public
performance of a sound recording. It does not refer to, for example,
lending a copy of a print book to a friend.
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250 Legally Using Content
When Is Permission Required?
General Rule
Every time you use copyright material in a manner that only the copy-
right owner has the right to do, you must obtain permission from the
copyright owner. As you now know, owning the tangible aspect of a
work protected by copyright does not exempt you from obtaining
permission, since ownership of the tangible work does not necessar-
ily mean that you own copyright in that work. For example, owning
a painting does not necessarily mean that you own copyright in that
painting. If you own the “physical property”—that is, the painting—
you cannot reproduce it or exhibit it in public without permission from
the copyright holder. The same is true with other subject-matter.
The copyright law does not usually distinguish between commer-
cial and noncommercial uses of a copyright-protected work when it
comes to permissions (one exception is for commercial rentals of sound
recordings and computer software).
Generally, if copyright exists in a
work, and if there is no speci c exception for that particular use, then
permission of the copyright owner must be obtained in order to use
the work. Even amateurs who are dealing with a copyright-protected
work, such as a theatre group performing a play, must get permission
to perform a copyright-protected work. This general rule applies to
works found on the Internet.
Using copyright-protected works in Canada—even foreign works,
provided they are protected in Canada—is always according to the pro-
visions in the Canadian copyright law. The use of Canadian copyright-
protected works in other countries would be under the copyright laws
of that country (provided that country and Canada have copyright rela-
tions). This chapter deals with the use of copyright materials in Canada.
Misconceptions about Permissions
To understand per missions, it is helpful to clear up misinformation
about how permissions work in Canada. Below are some misconcep-
tions with explanations on their validity.
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