Some charities or nonprofits may assume that because they are not profiting from their use of somebody else’s work, they are not doing anything wrong. The relevance of copyright and intellectual property laws can sometimes be overlooked. Yet charities and nonprofits, particularly those whose activities involve the dissemination of information, may be quite likely to come into contact with issues involving copyright law. Such activities usually involve the use of literature, art, music and other media, both in print and online. Almost invariably, some form of copyright exists in all of these forms of media that are used by charities and nonprofits, including materials and content created by or for the organization. Therefore, an understanding of copyright law is essential.
Basic principles of copyright
In simplest terms, “copyright” means “the right to copy.” The basic rule that copyright creates is that only the owner of copyright (usually the creator of the work) is allowed to produce or reproduce the work or any substantial part of it, or to authorize anyone else to do so. Canada’s Copyright Act contains many variations and exceptions to this basic rule, and copyright issues are often complex. However, familiarity with some of the basic principles of copyright law can help charities and nonprofits to avoid legal issues and possible liability.
Copyright can usually be assumed to apply to a creative work, because copyright protection arises automatically at law when an author creates an original literary, artistic, musical or dramatic work. The creator (or in some cases the creator’s employer) is entitled to copyright protection immediately and there is no need to register or provide notice of copyright for protection to apply.
As soon as the work is created, reproducing the work without permission can violate the copyright owner’s rights. This type of violation is referred to as infringement, and copyright owners have legal remedies under the Copyright Act against those who have infringed their work. Therefore, when an organization wishes to use or reproduce another person’s work, it needs to either obtain permission from the copyright owner, or establish that it has the legal right to use the work without permission as a result of an exception under the Copyright Act.
Fair dealing and other exceptions to infringement
The Copyright Act provides exceptions which allow for the use of a copyright-protected work without the owner’s permission. The “fair dealing” exception may apply where the unauthorized use or “dealing” with the work is fair under the circumstances and is done for one of the purposes identified in the Act. The fair dealing purposes include research, private study, news reporting, criticism or review, education and parody or satire. Determining whether use or dealing with a work is “fair” depends on the facts in each case, and organizations must bear in mind that fair dealing exceptions are not absolute, even when a work is being used for one or more of the purposes named in the Act.
Other exceptions to infringement include copying for the “private” purposes defined in the Copyright Act (for example, creating backup copies of certain works, or the new so-called “YouTube Exception” which permits reproduction of copyrighted material for non-commercial user-generated content). Additionally, some types of organizations may be subject to specific exceptions allowing limited use or reproduction of certain types of works, including educational institutions, libraries, archives and museums, as well as religious, educational, charitable and fraternal organizations.
Being a charity or nonprofit does not excuse an organization from liability for using somebody else’s work to further their cause. Charities and non-profits should be aware that the limited exceptions provided for under the Copyright Act are narrow in scope, and there is no general exception for activities undertaken by charities or nonprofits. Organizations should consult legal counsel to determine what exceptions might apply in their case.
Copyright considerations for charities and nonprofits
Charities and non-profits should try to consider copyright from two perspectives. The first is to prevent the organization and its employees from knowingly or unknowingly infringing third-party copyrights in order to avoid possible liability for the organization. Some ways to avoid copyright infringement include using only materials which are made available for public use on a royalty-free basis, or purchasing licenses to use others’ creative content. Another way for an organization to avoid infringement is to educate its employees about acceptable use of copyright-protected materials, perhaps including developing a copyright policy that addresses, for example, when it is permissible to copy and paste content from the internet.
The second perspective from which charities and nonprofits should consider copyright is to manage and protect the creative materials and content that the organization and its employees produce. For example, implementing standard practices to include copyright notices on publications, websites and other works belonging to the organization can help prevent others from misappropriating the organization’s work. Organizations are often surprised to learn they may not always own the rights to works created by employees and volunteers on the organization’s behalf. Unless the organization obtains a written assignment of copyright, the copyright may continue to belong to the individual. Copyright in such works can and should be assigned to the organization by the individual creators (along with a waiver of the author’s “moral rights”), to allow the organization to claim and enforce its rights under the Copyright Act, if ever necessary.
A basic understanding of how copyright laws apply can help a charity or nonprofit to protect and grow its intellectual property assets. Conversely, lack of awareness of copyright issues can result in the mismanagement of potentially valuable intellectual property assets, and also increases an organization’s risk of liability to third-party copyright owners. Consideration of copyright issues and development of strategies for the protection of copyrighted works is important for all charities and non-profits.
Colin J. Thurston is an associate in the Orangeville office of Carters Professional Corporation practicing intellectual property, information technology and privacy law, and can be reached at firstname.lastname@example.org.