Legally Using Content

• Author: Lesley Ellen Harris
• Profession: Lawyer, author, and educator
• Pages: 249-279

249

CHAPTER 14

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).

1

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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