Copyright: What is substantial copying?

"Whether a substantial part of a work has been reproduced is a question of fact and involves a qualitative rather than quantitative analysis. The relevant factors to be considered include:

• the quality and quantity of the material taken;
• the extent to which the respondent's use adversely affects the applicant's activities and diminishes the value of the applicant's copyright;
• whether the material taken is the proper subject-matter of a copyright;
• whether the respondent intentionally appropriated the applicant's work to save time and effort; and
• whether the material taken is used in the same or a similar fashion as the applicant's" (emphasis added) (par. 23).

"Applying those factors to this case, I find that the respondents did not reproduce a substantial part of the [newspaper article], and therefore there is no infringement" (par. 24).

"Quantitatively, the reproduction constitutes less than half of the work. The [newspaper article] consists of a headline and eleven paragraphs. The reproduction . . . included the headline, three complete paragraphs and part of a fourth. Qualitatively, the portions reproduced are the opening 'hook' of the article, and the summary of the facts on which the article was based. Most of the commentary and original thought expressed by the author is not reproduced" (par. 25).

Warman v. Fournier, 2012 Federal Court [decision number] 803