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Insubstantial Copying

September 2025

This instructional module is not intended as legal advice. All Opening Up Copyright modules are made available under a Creative Commons Attribution 4.0 (CC-BY-4.0) International license.

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COPYRIGHT-PROTECTED WORKS

©

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SUBSTANTIAL PART OF A WORK

“sole right to produce or reproduce the work or any substantial part thereof….”

Section 3 (1)

©

does not apply

substantial

NOT a

part

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WHAT COUNTS AS SUBSTANTIAL?

Is this substantial?

You need to make an assessment!

Assessing

substantiality

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FAIR DEALING

substantiality

Is this fair dealing?

For the sake �of exploration…�nope!

Six-factor test

Purpose

Assessing

fair dealing

Assessing

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INTENDED USE OF THE MATERIAL

Verbatim passages
Paraphrasing
Derivative work

Substantiality assessment

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ASSESSMENT FACTORS

Impact on the rights holder & �Overall value to the source work

Quantity & Quality

Factors:

What?

How?

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DIRECT COPYING

How?

What?

Verbatim passage

How much?
How important is it?

How is it presented?
Acknowledgment?

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CITATION & ACKNOWLEDGMENT

If an excerpt is not substantial, �copyright protection does not apply

Henri de Auteur (2023) found that �“the psychological impact of sibling rivalry…” �(p. 49).

My permission is �not required.

Thanks for acknowledging

my work!

?

✔

ACKNOWLEDGMENT

CITATION

But wait a second. [c] If an excerpt is [c] not substantial, then [c] no copyright protection applies. So, if no copyright applies, [c] what is all this about [c] citation and acknowledgement? [c]

The presence or absence of these might impact the rights holder. [c] It might be argued that the use of the material has less adverse impact on the rights holder [c] if the source work and its author are clearly identified and acknowledged, and reducing the impact on the rights holder may be relevant to substantiality. [c] 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. [c]

In Aya’s case, [c] she wants to reproduce one full paragraph from a book. [c] The paragraph will be reproduced verbatim, [c] the source work from which the paragraph has been taken and the author will be clearly identified, and the source will be appropriately cited. [c] In this case, it is reasonable to consider the paragraph in the context of Aya’s use of it as not substantial, [c] and therefore Aya will not need to seek permission to use this excerpt as described.

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ALTERED COPYING

My permission is �not required.

How?

What?

Paraphrase

2 pages into paragraphs
Key information only

Credit the source
Provide citation

The second way Aya wants to [c] use material from another source is to paraphrase some material from another work. In other words, she is writing some new text, but this new text will rely considerably on the source work. Let’s refer to this category [c] as “altered copying”.

Again, in assessing substantiality in cases of altered copying, the same two factors apply: [c] the “what” – quantitative and qualitative aspects of the use in relation to the source work, and [c] the “how” – potential impact on the source work and its rights holder.

In this case, Aya intends to [c] paraphrase, in a few paragraphs, what covers two pages in the source work, which is also a book. Aya’s readers don’t need as much detail as is offered in the original, and [c] Aya also thinks that her version communicates the key information more clearly, at least for her purposes. Aya intends to [c] mention the source in the body of her text, and to provide a specific citation in a footnote.

Again, given Aya’s approach to the what and the how, this example of altered copying should count as insubstantial and not require permission from the copyright holder.

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DERIVATIVE WORKS

How?

What?

Is my use of material from �The Godfather substantial?

Original story | Existing characters and settings

New scene using existing characters
Common knowledge of the source

Credits source works
Use of source material serves the larger work

The third way that Aya wants to use material from another source is [c] for one chapter of her book to make its point through telling a story. This chapter will be an original story, created to illustrate a point in her book, that makes use of certain characters and settings [c] from The Godfather. Let’s call this [c] a “derivative”.

Specifically, [c] Aya’s chapter will [c] centre on a scene that never appears in the original between the characters Michael and Fredo Corleone. Aya’s chapter will attempt to [c] make its point effectively through reliance on the knowledge her audience already has of The Godfather’s characters and their world, based on the popularity of the source work. [c] She will [c] credit the novel and the two movies in footnotes.

Although [c] Michael and Fredo are important characters in The Godfather, and while Aya’s chapter will rely on much of what the original has done to create and give depth to these characters, she is using them for a small portion of her work to illustrate a point about relationships between brothers that serves her larger work. So, [c] is Aya’s use of the material from The Godfather substantial?

Fortunately, there is a court case that provides some guidance in such situations.

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CINAR CORPORATION V. ROBINSON

“A substantial part of a work is a flexible notion.” (para. 26)

“A substantial part of a work is part of the work that represents a substantial portion of the author’s skill and judgement expressed therein.” (para. 26)

“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.” �(para. 36)

“If the differences are so great that the work, viewed as a whole, is not an imitation but rather a new and original work, then there is no infringement.” �(para. 40)

Assessing substantiality:

In 2013, [c] the Supreme Court of Canada issued a decision that deals with a derivative work. This case dealt with the characters and settings of a television program, and the Court made the [c] following four points to assist in assessing substantiality that might be applicable to such a derivative work.

[c] “A substantial part of a work is a flexible notion” (para. 26)

[c] “A substantial part of a work is part of the work that represents a substantial portion of the author’s skill and judgement expressed therein.” (para. 26)

[c] “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.” (para. 36)

[c] “If the differences are so great that the work, viewed as a whole, is not an imitation but rather a new and original work, then there is no infringement.” (para. 40)

(Cinar Corporation v. Robinson 2013 SCC 73) [H5P link]

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ASSESSING SUBSTANTIALITY

How great are the differences between the derivative and the original work?

How reliant is the derivative on the skill and judgement of the original author?

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LEARNING OBJECTIVES

Recognize how copyright applies only to uses of substantial portions of protected works
Describe two factors that might be considered in making a determination of substantiality
Explain the differences between direct copying, altered copying and derivative works

You should now be able to:

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THANK YOU FOR YOUR ATTENTION

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An assessment to determine substantiality may not be necessary if this Copyright Act exception can be applied to the use of the work instead:

Public domain
Free wheeling
Fair dealing
Fair use

According to the Copyright Act, copyright protection applies to “any portion” of a work.

True
False

QUESTIONS

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When making a determination of substantiality, the main factors that should be considered are: �[select all that apply]

The “Why” (the purpose for using the material)
The “What” (the quantity and quality of the material used)
The “How” (the impact of the use on the rights holder and its overall value to the source work)
The “Where” (the country of origin of the source work)

Three main ways copyright-protected material might be used in one’s own work are:

Direct copying, photocopying and rewriting a work
Rephrasing, paraphrasing and deciphering
Altered copying, alternative phrasing and summarizing
Direct copying, altered copying and creating a derivative work

QUESTIONS

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In its 2013 Cinar Corporation v. Robinson decision, the Supreme Court of Canada defined “insubstantial” as an amount less than a specific percentage of a source work, making substantiality assessments unnecessary from that point on.

True
False

If an excerpt is not considered to be substantial, then there is no reason to cite or acknowledge use of the material in your work because no copyright protection applies.

True
False

QUESTIONS

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Vaver, D. (2011). Intellectual property law: Copyright, patents, trade-marks (2nd ed.). Irwin Law.

REFERENCES AND RESOURCES

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Cinar Corporation v. Robinson, 2013 SCC 73. https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13390/index.do

Warman v. Fournier, 2012 FC 803. https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/61165/index.do

CASES AND LEGISLATION

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Breaking_Brain. (2023). [Aya]. Pixabay. https://pixabay.com/vectors/woman-character-avatar-older-wise-7793451/

Dahlia nur aini. (2024). Content writing. The Noun Project. CC BY. https://thenounproject.com/icon/content-writing-6592127/

bmijnlieff. (2015). Tablet reading. The Noun Project. CC BY. https://thenounproject.com/icon/tablet-reading-131071/

Ahmad Ishaq. (2025). Book. The Noun Project. CC BY. https://thenounproject.com/icon/book-7871055/

Ahmad Ishaq. (2025). Book. The Noun Project. CC BY. https://thenounproject.com/icon/book-7871056/

Government of Canada. (2018). [Official rendition of the coat of arms of Canada]. Converted to svg by Zscout370. Wikipedia. https://en.wikipedia.org/wiki/Arms_of_Canada#/media/File:Coat_of_arms_of_Canada.svg

IMAGE AND SOUND REFERENCES

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Ruslan Dezign. (2017). Target. The Noun Project. CC BY. https://thenounproject.com/icon/target-1005058/

ATOM. (2017). Copy. The Noun Project. CC BY. https://thenounproject.com/icon/copy-1474212/

Timur Minvaleev. (2016). Percent. The Noun Project. CC BY. https://thenounproject.com/icon/percent-397874/

Gregor Cresnar. (2015). Dollar sign. The Noun Project. CC BY. https://thenounproject.com/icon/dollar-sign-171145/

AFY Studio. (2018). Leaf. The Noun Project. CC BY. https://thenounproject.com/icon/leaf-1737325/

b. Farias. (2017). Decision. The Noun Project. CC BY. https://thenounproject.com/icon/decision-1074053/

afar. (2023). Waiting. The Noun Project. CC BY. https://thenounproject.com/icon/waiting-6240438/

Titik Kornia Sari. (2024). Person. The Noun Project. CC BY. https://thenounproject.com/icon/person-7544896/

IMAGE AND SOUND REFERENCES

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Titik Kornia Sari. (2024). Woman. The Noun Project. CC BY. https://thenounproject.com/icon/woman-7544879/

Tatutati. (2018). [The Godfather illustration]. Pixabay. https://pixabay.com/illustrations/mafia-godfather-gang-bandits-3150587/

DrFortyseven. (2018). Ahem 1. Freesound. https://freesound.org/s/436107/

Dig deeper. (2017). [Supreme Court of Canada]. Wikimedia Commons. CC BY 4.0. https://commons.wikimedia.org/wiki/File:Supreme_court_of_Canada_in_summer.jpg

Viki Rutanara. (2025). Television. The Noun Project. CC BY. https://thenounproject.com/icon/television-7848206/

Andrew Doane. (2017). Deserted island. The Noun Project. CC BY. https://thenounproject.com/icon/deserted-island-1422106/

Boyan. (2020). Character [1]. The Noun Project. CC BY. https://thenounproject.com/icon/character-3584663/

IMAGE AND SOUND REFERENCES

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Boyan. (2020). Character [2]. The Noun Project. CC BY. https://thenounproject.com/icon/character-3584661/

Boyan. (2020). Character [3]. The Noun Project. CC BY. https://thenounproject.com/icon/character-3584652/

Closing Slides Music: Rybak, Nazar. (n.d.). Corporate Inspired. HookSounds. CC BY. http://www.hooksounds.com

Unattributed materials are contributions from the Opening Up Copyright Project Team and placed in the Public Domain.

IMAGE AND SOUND REFERENCES

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University of Alberta. (2025). Insubstantial Copying. Opening Up Copyright Instructional Module. https://sites.library.ualberta.ca/copyright/

LICENSING AND ATTRIBUTION

Suggested Citation:

For the project overview and complete list of modules please visit the project website at: https://sites.library.ualberta.ca/copyright/

Questions, comments, and suggestions should be directed to: ouc@ualberta.ca

This module is made available and licensed under a Creative Commons Attribution 4.0 International Licence

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CONTRIBUTORS

Copyright Office

Faculty of Education

Adrian Sheppard

Amanda Wakaruk

Mireille Smith

Kimberley Kemmer

Michael B. McNally

University of Alberta Library

Michelle Brailey

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ACKNOWLEDGMENT

The Opening Up Copyright (OUC) module series is made available by the University of Alberta Copyright Office.

OUC modules have been produced with the assistance of funding at the University of Alberta through its Centre for Teaching and Learning's Teaching and Learning Enhancement Fund (TLEF) (2017-21) and OER Grant Program (2020), and through a Support for the Advancement of Scholarship (SAS) grant (2021).