Substantiality

[Updated: 15 Nov 2024]

Source referenced: Content on this page has been adapted from Western University's Copyright @ Western website.

Section 3(1) of the the 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 parts of works do not fall under copyright protection at all.

However, the Act does not provide any guidance on what counts as a substantial part of a work. There is no threshold that serves as a universal tipping point triggering the presence of copyright protection in specific portions of a work. Determining substantiality is a nuanced question involving both quantitative and qualitative aspects in analysing the material you wish to copy or reuse in relation to the work from which it was taken. This is a matter of interpretation that must be considered on a case-by-case basis.

Before proceeding with an assessment of what might count as a substantial part of a work, consider whether your use might reasonably fall under fair dealing. Given that fair dealing may be relied upon for the use of substantial excerpts from copyright-protected works under specific circumstances, there may be no need to resolve any questions about substantiality where fair dealing applies.
 

 

Assessing Substantiality

Your intended use of a portion of a copyright-protected work might mean copying a passage directly, paraphrasing a passage, or creating a derivative work (original material that is inspired by, and written in the style of or otherwise draws on, the source work).

The following considerations are intended to help you determine whether your use should reasonably be considered substantial or insubstantial. This guidance stems from Warman v. Fournier (2012 FC 803, para 23) in which the Court offered relevant factors to be considered in determining what constitutes a substantial part of a work.

 

CONSIDERATIONS

What is being reproduced?

Consider the quantity and quality of the material used.

• 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. However, good scholarly practice dictates that such quotations be appropriately cited.

• The Copyright Board, for the purposes of a specific 2015 decision, suggested that 1-2 pages of a work, where they do not exceed 2.5% of the whole work (i.e., about 1 page of a 40 page document), would be an insubstantial portion of that work. This can be used as a general quantitative guideline to determine substantiality, with the understanding that qualitative considerations are also important to such determinations.

• Consider how important that portion is to the overall value of the source work. An original and distinctive title, for instance, may be considered substantial even though it represents only a very small portion of the whole work.

• In the case of a derivative work, consider how great the differences are between the derivative and the original work and how reliant the derivative remains on the skill and judgment of the original author.

The cumulative effect of the features copied from the work must be considered, to determine whether those features amount to a substantial part of [the original author]’s skill and judgment expressed in his work as a whole. (Cinar Corporation v. Robinson, 2013 SCC 73, para 36)

How is it being presented in the new work?

Consider the impact of the use of the material on the activities of the rights holder and the value of the copyright in the source.

• Might the creator's copyrights be adversely affected by your use of this portion of the work?

• The presence or absence of attribution to the author and the source work might impact the rights holder. While citation and acknowledgment are not always necessary for the use of an excerpt to be deemed insubstantial, where practical it is generally good practice to do so.

 

Insubstantial Copying

Having completed the assessment, if the portion of the work 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 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.

 

If you have any questions or require assistance, please contact Copyright Office staff at copyright@ualberta.ca.