IP Compendium

Notes on Canadian intellectual property law

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Substantiality in copyright law

Copyright protection does not extend to every “particle” of a work - infringement is only established of a “substantial part” of the work is reproduced.

S. 3(1) of the Copyright Act provides:

For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever … [emphasis added].

The question of substantiality is one of mixed fact and law.1 Substantiality must be examined holistically, and “the cumulative effect of the features copied from the work must be considered, to determine whether those features amount to a substantial part of [the author's] skill and judgment expressed in his work as a whole”.2

The concept of substantiality is related to the concept of Originality, since copyright protection extends only to the original parts of the author's work. Moreover, if the allegedly copying work is so different from the “source” work that it could be considered a new and original work, then no substantial part can be said to have been taken.3 The analysis takes into account both quantity (how much of the work was taken) 4 and quality (whether the essence of the original work was taken).5

1 Cinar Corporation v Robinson, 2013 SCC 73 at para 30 [Cinar].
2 Cinar at para 36.
3 Cinar at para 40.
4 Hawkes & Son (London) Ltd v Paramount Film Service, Ltd, [1934] Ch 593.
5 Robertson v Thomson Corp, 2006 SCC 43 at para 38.
copyright/substantiality.txt · Last modified: 2015/08/21 21:08 by KPS