Substantiality

[The content of this page has been excerpted from Western University's "Copyright @ Western" website (http://copyright.uwo.ca/guidelines_requirements/guidelines/substantiality_guidelines.html)]


Background

The Canadian Copyright Act grants the creator of a work the “sole right to produce or reproduce the work or any substantial part thereof in any material form whatever”. Users therefore have the right to copy insubstantial portions of copyright protected works without seeking clearance, paying fees, or looking further to other means in order to copy. Insubstantial amounts do not fall under copyright protection at all.

However, the Act does not precisely define substantial. There is no threshold that serves as a universal tipping point triggering the presence of copyright protection in portions of a work. Determining substantiality is a nuanced question involving both quantitative and qualitative aspects in analysing the material you wish to copy in relation to the work from which it was taken.

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Substantiality Guidelines

For the purposes of its 2015 decision [Access Copyright (Provincial and Territorial Governments, 2005-2014)], the Copyright Board considered that 1-2 pages not to exceed about 2.5% of the whole work or about 1 page of a 40 page document constitutes an insubstantial portion of a work. This can be used as a general quantitative guideline to determine “substantial” keeping in mind that more than the amount reproduced should be considered.

Look at the amount certainly, but also ask questions like:

  • Am I using only what need in order to serve my purpose or make the argument or give context?
  • Can I make the point using something that I have created?
  • Will the creator’s copyrights be adversely affected by my use of this portion of the work?

Depending on the context, copying a few sentences or a few paragraphs or even more may not constitute a “substantial” portion of the work. Typically quotations from an article included in a paper or on a presentation slide will be insubstantial and not protected by copyright.

If the amount you are using is not substantial you don’t need to look to other factors to enable your dealing (e.g., the existence of a University license or a statutory exception) nor seek permission and pay any required fee.

Attribution is always necessary when you use the work of another in your research, teaching and learning, both from a copyright perspective, and to comply with University policy on plagiarism.

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