Suppose someone creates an unauthorized music video to accompany a popular song, thus making an infringing derivative (assuming fair dealing or other exceptions don't apply in this case). This derivative author then gives you permission to copy their derivative. Independently, you have a legal right to copy the original song (an example would be you live in Canada where personal-use copying of music is generally legal).

It then appears that you aren't infringing the derivative author's rights since you have their permission, nor are you infringing the original author's rights since there's an exemption within the law.

It seems weird to me that there might be a legal possibility for you to own an unauthorized derivative by performing what appears to be a completely legal copy action, so I'm wondering if I missed something here.

Is the copying of the derivative work legal? Does the answer change depending on whether you have knowledge that the derivative is infringing? I'm most interested in answers covering Canada or the European Union.

Edit: I've since stumbled on a journal article by William J. Braithwaite that basically discusses my question in pgs 213-220, minus the portion about copying the original being legal. However, it discusses Canadian copyright law as it was in 1982 and is rather inconclusive.

  • Thee is no “fair use” in either Canada or the EU. Fair use is an exclusively US concept. – Dale M Feb 7 '20 at 23:54
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    @DaleM It's called "fair dealing" in Canada, (en.wikipedia.org/wiki/Fair_dealing_in_Canadian_copyright_law), but this isn't really relevant, as the question assumes fair use doesn't apply. – Ross Ridge Feb 8 '20 at 0:11
  • Either way, I've made the edit to be perfectly clear. – DPenner1 Feb 8 '20 at 0:23
  • @RossRidge fair dealing and fair use are practically quite different – Dale M Feb 8 '20 at 8:46
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    @DaleM In practice, no, they're very similar. Theoretically, fair use in the US is broader in scope because there's no statutory list of permissible uses, but in practice there's considerable overlap between whats considered fair dealing in Canada and fair use in the US. In any case, it's still irrelevant to the question. – Ross Ridge Feb 8 '20 at 8:53

Whoever "derived" the illegal derivative work most likely has copyright in his derivations, unless they are not worth copyright protections. Say I take the Harry Potter books and add a few chapters and try to sell it - that's copyright infringement of course, but I have the copyright on these additional chapters.

However, I don't have the right to allow you to copy the derived work. And even if you have the right to copy the original work, you don't have the right to copy the derived work because it is a different work. I could extract my changes, and allow you to take them and do with them what you like. You could then create an illegally derived work yourself. I couldn't sue you, but the original copyright holder could.

To the comments: One, a work and a derivative of the work are not the same, so even if you have the right to make a copy of a work, that doesn’t give you any right whatsoever to copy a derivative work - they are not the same work. Two, the copyright holder has the exclusive right to control copying and the creation of derivative works. If the copyright holder doesn’t want derivatives to exist, then creating them, copying them etc. is always copyright infringement.

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    Could you cite statute or case-law supporting this? Specifically, why don't you have the right to allow me to copy the derived work? Sure, the creation of your derivative work was infringing, but you still have copyright over it so presumably can licence it. Additionally, even if you could not give a valid licence, on what grounds could the original work's author sue me, i.e. what infringement am I committing? – DPenner1 Feb 10 '20 at 6:31
  • Obviously I don't have the sole copyright over the complete derived work. As I said, I can extract the chapters that I wrote. And with what I wrote, you either copy or create a derived work without permission of the copyright holder of most of the work. – gnasher729 Feb 10 '20 at 12:28
  • "And with what I wrote, you either copy or create a derived work without permission of the copyright holder of most of the work." -> No dispute creating a derived work is an infringement. But the copy portion is basically what I'm asking in my question. Under what statute/case-law could copying a derived work be an infringement against the original author when I have legal right to the original author's work? Just because I copy without permission doesn't automatically mean it's an infringement, because there are exceptions. And to me at least, this appears to be one. – DPenner1 Feb 11 '20 at 6:27
  • I have to disagree with your recent edit: "If the copyright holder doesn’t want derivatives to exist, then creating them, copying them etc. is always copyright infringement." Canada explicitly lists exceptions to copyright infringement in ss. 29-32. eg, private copy, temporary copy, fair dealing (granted I've made the assumption they don't apply to the creation of the derivative here). In CCH Canadian Ltd. v. Law Society of Upper Canada, the SCC ruled exceptions are users' rights and shouldn't be interpreted restrictively. – DPenner1 Feb 12 '20 at 22:00

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