Copying and Reproduction for Blogs and other Social Media

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Some amount of copying of content on the internet is permitted, but how much?

The June 21, 2012 case of Warman v. Fournier (Federal Court of Canada, Trial Division) provides some guidance.

Under the Copyright Act (Canada) (RSC 1985,c. C-42), “copyright” is defined as “the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever”… [emphasis added]

In Warman v. Fournier, the Court stated that whether or not a substantial part of a work has been reproduced is a qualitative (rather than quantitative) issue and followed U & R Tax Services Ltd v H & R Block Canada Inc., [1995] FCJ No 961 in setting out the factors to consider. They are as follows:

  1. the quality and quantity of the material taken;
  2. the extent to which the respondent’s use adversely affects the applicant’s activities and diminishes the value of the applicant’s copyright;
  3. whether the material taken is the proper subject-matter of a copyright;
  4. whether the respondent intentionally appropriated the applicant’s work to save time and effort; and
  5. whether the material taken is used in the same or a similar fashion as the applicant’s.

The Court found that “a substantial part” of the work had not been reproduced; there was no infringement of copyright. Mr. Justice Rennie stated that:

“Quantitatively, the reproduction constitutes less than half of the work. The Kay Work itself consists of a headline and eleven paragraphs. The reproduction on Free Dominion included the headline, three complete paragraphs and part of a fourth. Qualitatively, the portions reproduced are the opening “hook” of the article, and the summary of the facts on which the article was based. Most of the commentary and original thought expressed by the author is not reproduced.”

It is important to keep these issues in mind when writing your blogs and social media content.

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