Lawyers are often asked how much copying will constitute copyright infringement.  Of course, every good lawyer will answer “It depends.”  The recent Harry Potter case illustrates this issue: Author J.K. Rowling claimed that a plan to publish a lexicon (essentially an alphabetized reference listing Harry Potter characters, names and other information) would be a violation of copyright in the Harry Potter series of novels, even though the novels themselves weren’t copied, but rather the character’s names and information about the characters.  Last week’s US ruling came down in favour of Rowling, and the proposed book will never see the light of day.

So, how much is too much?  In Canada, the Copyright Act refers to a “substantial part” but like many legal concepts, the exact meaning is up to the court to determine.  In one recent Alberta case, Flag Works Inc. v. Sign Craft Digital, 2007 ABQB 434 (CanLII) a company copied its competitor’s advertising brochure, changing only the name, and a few details in the text. The court had no trouble concluding that a “substantial part” was copied, and therefore copyright was infringed. 

At the other end of the spectrum, a recent US case (Veritas Operating Corp. v Microsoft Corp., No. 06-0703, 208 US Dist. LEXIS 8166 (W.D. Wash. Feb 4, 2008) made it clear that copying a mere 0.03% of software code (that’s 54 lines out of about 160,000 lines) may constitute copyright infringement, if the copied code is critical to the operation of the program.

A reproduction of about 5% (the copy comprised five lines out 116 lines of original text) was not considered a “reproduction of a substantial part of the whole” in the 2003 decision in Dolmage v. Erskine, 2003 CanLII 8350 (ON S.C.), and therefore did not constitute infringement.

Now you know why lawyers say “It depends”. 

Calgary – 13:10 MST