Content and Copyright

Can internet content be used for your own purposes, commercial or otherwise? The Canadian Broadcast Corporation’s lawsuit this past week against the Canadian Progressive Conservative party over its Twitter and website use of CBC election debate clips, merits a discussion on the topic. While the law is actually relatively straightforward, many individuals and businesses continue to be unaware of the restrictions on content usage. In short, aside from a few exceptions discussed below, you cannot use another party’s online content for your own commercial purposes.

Content or material is copyrighted from the moment it is put into a tangible or fixed form. This means all YouTube videos, Instagram posts, blog posts, tweets, photographs, etc. are copyrighted upon creation. You are only entitled to use that content in your own video, presentation, website, etc. if you have the permission of the party that created the material or has the copyright if it was transferred, the video is marked with a Creative Commons license, the work is in the public domain or the “fair use” or “fair dealing” (as it is known in Canada) exception applies.

Permission

Most online platforms such as YouTube or Instagram will not assist you with getting the permission of the content creator or the owner of the copyright if the copyright has been transferred. You must undertake your own research into determining who created the work and how you can go about getting their permission. This can be easier said than done but check the content itself for information, conduct online research or see if a searchable copyright database exists that you can use to search for copyright owners. Once you make contact with the owner, unless they give you a blanket permission to use the material, you will need to negotiate the use of that copyright in terms of duration of the term you can use the work, payment if requested, exclusivity, territory it can be used and items of this nature.

Creative Commons

If the content in question, such as a video posted on YouTube or photography on a website is marked with a “CCBY”, the creator has granted the right to use it subject to the type of license granted by Creative Commons. Creative Commons is a non-profit organization aiming to make copyright permission easier by providing a hub and standardized way of providing copyright permissions. Creative Commons provides the following four types of conditions to copyright licenses:

• Attribution (by): available to use but must give credit to licensor but not in a way that suggests endorsement by the copyright holder

• Sharealike (sa): copy, distribute, display, perform, and modify work as long as it is done on the same terms

• Noncommercial (nc): use for non-commercial purposes unless permission is granted for commercial use

• Noderivatives (nd): only original copies can be used, no modifications without permission

These conditions are combined into six different types of licenses:

• Attribution (CC BY)

• Attribution ShareAlike (CC BY-SA)

• Attribution-NoDerivs (CC BY-ND)

• Attribution-NonCommercial (CC BY-NC)

• Attribution-NonCommercial-ShareAlike (CC BY-NC-SA)

• Attribution-NonCommercial-NoDerivs (CC BY-NC-ND)

Creative Commons even has a CC0 license which allows the creator or copyright holder to waive all rights and place it in the public domain. I highly recommend checking out the informative Creative Commons site for more information about the above licenses.

Public Domain

Works in the “public domain” are free to be used without permission. Works that are in the public domain are typically creations in which the copyright has expired, have been freely put into the public domain by the creator or copyright owner or are works for which no copyright applies. Copyright length varies by country. In Canada it is lifetime of the creator plus 50 years (70 for performance and sound recordings) and in the United States, it is lifetime of the creator plus 70 years.

“Fair Use” or “Fair Dealing”

This exception to copyright law allows a work to be used without permission and/or payment to the content creator in the event you are using the work for research, private study, education, satire, parody, criticism, review, news reporting, etc. The legislation does not want to prevent anyone from discussing or using copyrighted work in any capacity, rather it wants to restrict that usage to essentially non-commercial purposes. “Fair use” (USA) and “fair dealing” (Canada) are slightly different concepts and can be quite complicated concepts to navigate. As we can see from the CBC election clip issue, the lines between what is and is not “fair use” or “fair dealing” can become blurred and you likely will need legal assistance to help you through this if the issues arises in your business.

Be aware when you are using third party content in your business or organization. More than likely, if you are using it for a commercial purpose, you must obtain the author or copyright owner’s permission, check to see if it is marked with a Creative Commons license (CCBY) (and if so, what restrictions are on the licence) or see if the work is in the public domain in which case you are free to use the material.

**** The information above is strictly legal information and not legal or other professional advice or opinion of any kind. Please contact a lawyer for specific legal advice on specific legal issues you may have. Please also see this site’s Disclaimer for further information.