- What constitutes a “substantial part” of a work.
- Why merely linking is not copyright infringement.·
No Reproduction of a Substantial Part The applicant submits that the respondents infringed his copyright in the Kay Work by reproducing excerpts from it. He argues that the reproduced excerpts constitute a substantial part of the Kay Work, contrary to sections 3 and 27 of the Copyright Act. Whether a substantial part of a work has been reproduced is a question of fact and involves a qualitative rather than quantitative analysis. The relevant factors to be considered include:a. the quality and quantity of the material taken;b. the extent to which the respondent’s use adversely affects the applicant’s activities and diminishes the value of the applicant’s copyright;c. whether the material taken is the proper subject-matter of a copyright;d. whether the respondent intentionally appropriated the applicant’s work to save time and effort; ande. whether the material taken is used in the same or a similar fashion as the applicant’s:U & R Tax Services Ltd v H & R Block Canada Inc,  FCJ No 961, at para 35. Applying those factors to this case, I find that the respondents did not reproduce a substantial part of the Kay Work, and therefore there is no infringement. Quantitatively, the reproduction constitutes less than half of the work. The Kay Work itself consists of a headline and eleven paragraphs. The reproduction on Free Dominion included the headline, three complete paragraphs and part of a fourth. Qualitatively, the portions reproduced are the opening “hook” of the article, and the summary of the facts on which the article was based. Most of the commentary and original thought expressed by the author is not reproduced. Most of the other factors are not directly relevant in this case given the circumstances in which the applicant obtained the copyright: he does not appear to “use” the subject matter of the copyright in the sense of reproducing or publishing the Kay Work. It is a highly critical articleabout the applicant and it appears he sought the exclusive license to the Kay Work in order to prevent its further publication. It does not appear that the excerpts of the Kay Work were reproduced to “save time and effort”. Based on the context of the posting, the respondents reproduced portions of the Kay Work to preserve a record of the facts summarized in the article, so that members of Free Dominion couldcontinue to discuss those facts on the forum. Also, contrary to the applicant’s argument, the reproduction does include a summary or paraphrase of part of the work, specifically the second paragraph. Thus, considering the matter as a whole, I find as a fact that the applicant has not established that the excerpts of the Kay Work reproduced by the respondent constitute a “substantial part” ofthe work, and there is therefore no infringement. (emphasis added)
- Copying several sentences or even paragraphs or more may not be a “substantial part” of a work, depending on the context;
- Only if the copying is “substantial” is there any need to worry about “fair dealing”; and,
- Above all, there is no need to get permission or to make any payment for copying anything that is not a “substantial part” of the work, or if it is, that is “fair dealing”.·
- Copying a headline, three paragraphs and part of a fourth out of an 11 paragraph newspaper article was not “substantial” in this context
- Hyperlinking to something posted by a person entitled to post it isn’t copyright infringement. If this person does not want folks to hyperlink to something, it should not be posted. This conclusion should be seen as a vindication of the “implied right” concept that that linking, printing, displaying and other normal non-commercial activity associated with publicly available material on the internet is already legal and that there was no need to pass a special provision confirming such legality for the educational community.
- There may be applications to intervene – both supporting him and opposing him.
- He will have a steep uphill battle because Justice Rennie’s reasons are clear, correct and, indeed, clearly correct. Moreover, to the extent Justice Rennie's conclusions are based upon fact finding in contrast to legal reasoning, they are even harder to overturn on appeal.