Using Third-Party Owned Content: Introduction
The Internet has been a massive boon for creators: it has given an unmediated, free (or nearly free) platform on which to exhibit works which can be viewed by millions, or even billions, of people. On the other hand, the mass proliferation of online content has greatly increased the incidence of digital piracy and presents new challenges for the use, dissemination, and protection of creators’ intellectual property.
Content that is found online is easy to access, copy and incorporate into your own work, but the largely open nature of the Internet has lead to many misconceptions about how and when it is appropriate to do so.
Under what circumstances may a Canadian producer of film, television or digital media content incorporate another’s online content into their own production, and when is the creator’s permission required?
Using Other People’s Content
As a starting point, if you did not create the content, you generally need permission from the rightsholder (typically the creator) to use it. The rightsholder will usually expect a license fee in exchange for their permission. In some cases, rightsholders make their content available for free, but you should always verify that this is the case and if there are any conditions or limitations on how the content may be used. This information can often be found on a website’s terms of service.
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Copyright
In Canada, when an original work is created it is automatically protected by copyright; it does not need to be registered. In almost all cases, content that appears online is copyright protected, including the content you are interested in using in your project. One common exception is when the content is in the public domain. In Canada, a copyrighted work enters the public domain fifty years after the year in which the creator of the work died. Unless you know a work is in the public domain, the safest approach is to assume that it is protected by copyright.
Using Third-Party Owned Content: Frequently Asked Questions
Below are answers to some common questions:
Question: I will only exploit my project on digital platforms, not on television. Do I still need permission to use the another’s content?
Answer: Yes. You need permission from the rightsholder, regardless of the media in which it is going to be used. However, there may be room to negotiate a lower licence fee if your use is limited to digital platforms as compared to television or a feature film.
Question: I want to know about using third-party owned content. Is content on the Internet “free” for anyone to use?
Answer: No. Just because content is posted online does not mean it is in the public domain or that the rightsholder has relinquished their rights to it. Permission must still be obtained. In tracking down who owns the rights, check to see if the item has been credited. Sometimes content found online will be subject to a creative commons license. In this case, read the relevant license – not all creative commons licenses are the same. For example, some provide that the content may be used for personal but not commercial purposes. Others provide for both personal and commercial use. For more information about creative commons licenses, visit Creative Commons.
Question: I’m hearing a lot about “fair dealing” and a “2-minute rule”. If I only use two minutes of a video, do I need to obtain permission from the rightsholder?
Answer: Yes, you still need to obtain permission. A “2-minute rule” does not exist. The “fair dealing” exception in Canada’s Copyright Act provides that under certain circumstances[1] use of a copyright protected work for the following purposes does not infringe copyright: research, private study, criticism, review, news reporting, education, satire, or parody. For “news reporting” you must identify the source of the content and, if available, the author, maker or broadcaster who owns the content. Use only enough to advance your news item.
1: In addition to falling into one of the “fair dealing” categories set out in the Copyright Act, the use of the content must also be “fair”, which is a question of fact and depends on the circumstances of each case. The following factors can be considered in assessing whether a dealing was fair: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. Although these considerations will not all arise in every case of fair dealing, the list provides a useful analytical framework to govern determinations of fairness. ↑
Using Third-Party Owned Content: Conclusion
Do you have questions or need more information? You can contact one of the lawyers at Edwards Creative Law.
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Updated to October 15,2021
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* This blog is for general informational purposes only and is not to be construed as legal advice. Please contact Edwards Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.
