The definition of the word “publication” in the Canadian Copyright Act is a follows:
2.2 (1) For the purposes of this Act, publication means
(a) in relation to works,
(i) making copies of a work available to the public,
(ii) the construction of an architectural work, and
(iii) the incorporation of an artistic work into an architectural work, and
(b) in relation to sound recordings, making copies of a sound recording available to the public,
but does not include
(c) the performance in public, or the communication to the public by telecommunication, of a literary, dramatic, musical or artistic work or a sound recording, or
(d) the exhibition in public of an artistic work.
Section 77 of the Copyright Act has a provision allowing persons to obtain permission from the Copyright Board to use copyright materials, if the owners of the copyright materials cannot be located. There have been two recent applications before the Copyright Board relating to materials that were posted on the Internet. One application for permission to use related to a comment that was posted in a “Comments” section of an online news service. The other related to a YouTube video.
After review, the Copyright Board was satisfied that the copyright owners were not locatable, and indicated that they would be prepared to grant permission in the form of a non-exclusive license, if the comment and the YouTube video were considered to be “published”. However, neither the comment nor the YouTube video were intended to be downloaded. The comment was merely viewable on the website of the news service and the YouTube video was intended to be streamed rather than downloaded. The Copyright Board noted that under section 2.2 of the Copyright Act “publication” expressly does not include “communication to the public by telecommunication”. The Copyright Board reached the conclusion that any materials posted on the internet (that are not intended to be downloadable) are merely communication to the public by telecommunication and thus are not “published” for the purposes of the Copyright Act.
I must confess that I have never had occasion to critically review the exceptions to “publication” contained in the definition of publication, until now. Relying merely upon common sense, I assumed that if the entire world could view the copyright materials on the internet, that they were published. I was wrong!
This finding by the Copyright Board potentially has significant implications. There are many provisions in the Copyright Act that treat unpublished materials differently from published materials. Materials that are merely posted to the Internet without the intention that they be downloaded are now considered to be unpublished materials. This will likely spawn further cases and commentary, which we will report to you as they are “communicated to the public by telecommunication”.