When you plan to use a work in its entirety, you definitely will need to consider copyright. However, when you want to use part of a work, copyright applies only if the amount is substantial.
So, what qualifies as substantial?
The Short Answer
For the purposes of a 2015 decision, 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:
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 College Academic Integrity Practices.
Need help determining if your use is substantial. Contact the Copyright Specialist for assistance.
The Longer Answer
The Copyright Act (section. 3) 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 analyzing the material you wish to copy in relation to the work from which it was taken.
Case law applying the Act can assist in clarifying ‘substantiality’. Specifically in the Warman v. Fournier, 2012 s.23 ruling the Federal Court offered the following five considerations to assist in determining what constitutes substantial:
Whether a substantial part of a work has been reproduced is a question of fact and involves a qualitative as well as quantitative analysis. The relevant factors to be considered include:
In May 2015, The Copyright Board of Canada also provided additional clarity surrounding substantiality, in its Statement of Royalties to be Collected by Access Copyright for the Reprographic Reproduction, in Canada, of Works in Its Repertoire [Provincial and Territorial Governments – 2005-2014]. As part of its detailed deliberations regarding the tariff amount payable to Access by the Governments, the Copyright Board gave careful consideration to what constitutes a substantial portion of a work. The Board’s discussion of substantiality forms part X-B of the decision.
These factors were used to determine the substantiality guidelines listed in the Short Answer above.
Substantiality is one of several conditions affecting use of a work. In addition, the Copyright Act provides several statutory exceptions outlining specific circumstances and conditions when works may be reproduced without seeking clearance other exceptions or conditions outlined throughout this guide may apply to your situation.
Adapted from Western's Substantiality Guidelines licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.