What does it mean to be “substantial”? No, this is not the kind of question that requires a long reflective look in the mirror (unless that’s your thing…I’m more of the “stare into a sunset pensively” type), but it is the kind of question the Copyright Board recently tried to answer in its May 23rd decision: Access Copyright (Provincial and Territorial Governments) 2005-2014 tariff.
It is a well-established principle of copyright law that as per Section 3(1) of the Copyright Act, copyright means “the sole right to produce or reproduce the work or any substantial part thereof.” However, as noted by other copyright law commentators, Canadian courts have frequently avoided defining what a “substantial part” actually means. In Cinar Corporation v Robinson the Court stated that it is a flexible and contextual concept rooted in quality rather than quantity. Conversely, in CCH v LSUC, the Supreme Court explained it as being “not trivial” or “important.” As such, if an insignificant part of a work (a part that is not “substantial”) is copied the copyright owner’s rights are not violated. What a “substantial part” actually is is therefore quite important to an infringement analysis, and comments by the Copyright Board in their recent decision are worthy of discussion.
The Access Copyright decision stemmed from objections by various provincial and territorial governments to the proposed statements of royalties that the Canadian Copyright Licensing Agency (operating as Access Copyright) filed in March 2004 and 2009 pursuant to the Copyright Act. Specifically, the royalties to be collected concerned the reproduction of various literary works. In the decision, the Board had to determine what copying occurred in order to determine the proper royalty calculations. In doing so, the Board made the following finding at paragraphs 204 to 205:
In this matter, without the benefit of a qualitative analysis of each of the copied works, and without even knowing which portions of a work were copied, in our opinion the amounts [of]…1 to 2 pages of a work, are reasonable approximations in establishing non-substantiality. However, since 1 to 2 pages of a short work can amount to a great portion of that work, we further limit this approximation by requiring that the copying of 1 to 2 pages not constitute more than 2.5 per cent of the entire work…Thus, for the purposes of calculating a royalty rate for this Tariff, we consider that copying events where 2 pages were copied from a work of 80 pages or more, or 1 page were copied from a work of 40 pages or more, represent copying that was not a substantial amount of the work.
In my opinion, the Board has navigated into dangerous waters in this attempt to quantify what makes “substantial part” substantial. Imagine hypothetically that I wrote a 100-page work which takes only two consecutive pages to describe the plot and characters (forget that this sounds like a pretty awful book unlikely to be infringed). If another author used the information from those two pages (and nothing from the rest), would my rights be unprotected because the copying percentage falls below 2.5 percent? Or would my rights be protected by a qualitative assessment of the work as a whole with those two pages deemed substantial, omitting a quantitative analysis? In either circumstance, the Board is making murky waters murkier, not clearer, by adding a number to an assessment that has traditionally remained (in my opinion for good reason) concerned with what was copied from the page rather than how many pages were copied.
It is possible that these fears are premature. Bob Tarantino notes that the Board’s decisions are not court decisions, and this one is particularly tempered with an acknowledgement by the Board that the above numbers were determined “without the benefit of a qualitative analysis.” Yet, the fact that the Board felt compelled to define “substantial” in order to conduct its calculations may indicate that this is a practice it will embrace not just in regards to literary works, but other protected creations in the future.
Jaimie Franks is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.
