copyright for crafters
How does copyright protect a work?
Choose one of the following sections:
- what kinds of rights are granted by the Copyright Act?
- what is infringement?
- what kind of copying is considered to be infringement?
What kind of copying is considered to be infringement?
For the purposes of infringement, it is not necessary for the reproduction to be direct and obvious, like photocopying. The reproduction may be indirect, or from memory, or in another form.
For example, let’s say an artist paints an original floral design. This painting, being an artistic work and original, is protected by copyright. A T-shirt vendor sees the painting, and then creates a pretty good imitation and prints them on T-shirts. This is infringement; the vendor had access to the painting, and although the painting was not reproduced exactly, the T-shirt design sufficiently resembles the painting to be an infringement.
On the other hand, if the T-shirt vendor only imitated one detail from the painting, it may or may not be infringement depending on whether it was considered to be a “substantial part” of the copyrighted work. If the artist’s style could be recognized in the detail, though, it may be considered to be infringement.
Infringement can be unconscious and unintentional, but it is still considered infringement. It’s possible to see a painting, or read a poem, then later reproduce a substantial part of this painting or poem from memory without realizing or remembering the true source. This is still infringement because intention is not relevant in a civil copyright lawsuit; it is enough that the copyright owner can prove access and the copying of a substantial part.
It is also infringement to sell or rent out copies of works that you knew, or should have known, were protected by copyright, even though the copies were not made by you personally.
What is infringement?
Anyone who carries out one of the acts listed in section 3(1) of the Copyright Act without the permission of the copyright owner is infringing copyright. There is still infringement even if the copy is not an exact reproduction, but is instead only a colourable imitation of the copyrighted work.
In terms of evidence, the copyright owner seeking to prove infringement must show that (1) the infringer had access to the copyrighted work and (2) at least a substantial part was copied. If the infringer didn’t have access to the work directly or indirectly, logically, it could not have been copied. If the infringer did not reproduce at least a substantial part of the work, then there cannot be infringement, because the Copyright Act gives the copyright owner the right to reproduce the whole work, or any substantial part of the work.
In determining what is substantial, the copied part is measured not just quantitatively (one page out of a book? ten pages? an entire chapter?), but also qualitatively (how important is that part to the rest of the work?).
This means that if you were to photocopy an entire novel, you would likely be infringing the copyright in that book; but if you copied only a phrase, this would probably not be a “substantial part” of the work and therefore you would not be infringing copyright.
If you merely quoted a short passage for the purpose of commentary, and you indicated the source of the passage, this would not be infringement either.
An infringer may be liable for damages and lost profits, and may be subject to an injunction, if successfully sued by the copyright owner or a licensee of the copyright owner. If an infringer is prosecuted for copyright infringement, the penalties include a wide range of fines and imprisonment.
What kinds of rights are granted by the Copyright Act?
The Copyright Act gives the owner of copyright in a work the exclusive right to:
- produce or reproduce the work or any substantial part of the work in any material form;
- perform the work or any substantial part of the work in public;
- translate a work;
- publish the work or any substantial part of the work (if the work is unpublished); and
- authorize other people to do these things as well.
Section 3(1) of the Act lists some specific examples of these rights, but it is not an exhaustive list. Some of these specific rights are mentioned in here. Other rights, called neighbouring rights, are also granted by the Copyright Act. These are discussed here.
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