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33 C.P.R. (4th) 426
Licence Application by Pointe-à-Callière, Montreal Museum of Archeology and History for the Reproduction of Quotations
Callary Member, Charron Member, Doucet Member, Fenus Member, Gomery J.
Judgment: March 29, 2004
Table of Authorities3
Chappell & Co. v. Thompson (1934), Mac. & G. 467 (Eng. Ch. Div.) — considered5
Gould Estate v. Stoddart Publishing Co. (1998), 39 O.R. (3d) 545, (sub nom. Succession Gould c. Stoddart Publishing Co.) 39 O.R. (3d) 555 (Fr.), 80 C.P.R. (3d) 161, 161 D.L.R. (4th) 321, 114 O.A.C. 178, 1998 CarswellOnt 1901, 43 C.C.L.T. (2d) 1 (Ont. C.A.) — considered6
Hager v. ECW Press Ltd. (1998), 1998 CarswellNat 2568, 158 F.T.R. 44,  2 F.C. 287, 85 C.P.R. (3d) 289, 1998 CarswellNat 3031 (Fed. T.D.) — considered7
University of London Press v. University Tutorial Press Ltd. (1916),  2 Ch. 601 (Eng. Ch. Div.) — considered8
Copyright Act, R.S.C. 1985, c. C-4210
s. 3 — considered11
s. 3(1) “copyright” (a) — considered12
s. 77 — pursuant to13
s. 77(1) — considered14
Decision of the Board:15
1 On September 23, 2003, the Pointe-à-Callière, Montreal Museum of Archeology and History (the “Museum”) requested a licence pursuant to section 77 of the Copyright Act (”the Act”). The Museum wishes to reproduce and display, in the context of an exhibition entitled Dreams and Realities Along the Lachine Canal, twelve quotations, ten of which would also be translated. The texts come from two books entitled St-Henri and Petite Bourgogne. The books are compendia of short commentaries on the social, political, labour and community history of these Montreal neighbourhoods. Maps, posters and news extracts accompany the original texts, as do ten or so pages of parts of “témoignages” or accounts offered by some half a dozen long time residents. The passages to be used are statements attributed to nine of these persons and deal with living conditions and other aspects of life during the last century.17
Relevant Legislative Provisions18
2 Subsection 3(1) of the Act states that:19
... “copyright”... means the sole right to produce or reproduce the work or any substantial part thereof... and includes the sole right
(a) to produce, reproduce, perform or publish any translation of the work,.
3 For its part, subsection 77(1) of the Act empowers the Board to issue “a licence to do an act mentioned in section 3” in respect of a “published work” where “the Board is satisfied that the applicant has made reasonable efforts to locate the owner of the copyright and that the owner cannot be located.”21
4 In the Board’s view, the relevant works have been published, the owners of the copyright in the works cannot be located and reasonable efforts have been made to locate those owners. Under the circumstances, however, this is insufficient to justify the issuance of a licence.23
5 A licence issued pursuant to section 77 of the Act authorizes “an act mentioned in section 3.” This presupposes that the application involves an act within the exclusive purview of the rights holder. Thus, the Board could not issue a licence for the private performance of a work, since only public performances are mentioned in section 3.24
6 Section 3 of the Act only protects acts (in this instance, the reproduction or translation) involving “the work or any substantial part thereof”. In the Board’s view, the application concerns passages that, whether they are examined separately or as a whole, do not form a substantial part of the books from which they are to be quoted.25
7 The substantiality of a passage of a work is assessed quantitatively as well as qualitatively. As for quantity, the four hundred words that the Museum intends to use represent less than one per cent of the 175 or so pages of the relevant books. In addition, the quotes to be used are not interrelated and do not form a coherent whole.26
8 As for quality, the interview transcripts from which the relevant passages are drawn do not constitute the central element of the work; they serve first and foremost to support the authors’ main theses. Any originality that the comments may display was supplied by those who granted the interviews, even though the authors of the books probably hold the copyright in the comments. The proposed use is different from that contemplated by the author. The resulting material is not a substitute for the original work and will not jeopardize its economic exploitation: using the quotations in the manner proposed will in no way undermine the market of an eventual re-edition of the works. Neither are the selected quotes an essential characteristic of the relevant works: nothing would lead to believe that they may be so closely identified to the work as to allow the reader to recognize the work.27
9 None of these factors is determinative; taken as whole, however, they lead the Board to conclude that the passages to be used do not constitute a substantial part of the works from which they are taken.28
10 According to a well-known aphorism in the area of copyright, what is worth copying is prima facie worth protecting. Still, it cannot be argued as a result that a quotation is qualitatively substantial for the sole reason that someone wishes to make that quote. Under this approach, the principle according to which a non-substantial part of a work can be quoted without the author’s blessing would lose all meaning. If all quotations were intrinsically substantial, any quotation made without the authorization of the rights holder would prima facie constitute a violation of copyright.29
11 As a result, the application for a licence is dismissed for the reasons that the contemplated use does not need to be authorized by the holder of the copyright.
June 21, 2016
Ariel Katz Research Assistant
University of Toronto, Faculty of Law
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