[2]In order to assess whether this section of the Act has been infringed, the following three questions must be addressed: Théberge v. Galerie d’Art du Petit Champlain Inc. [2002] 2 S.C.R.
336 A copyright holder's economic rights will be infringed where an unauthorized copy is made of a work or a substantial part thereof.
The majority in Theberge, aiming to strike a balance between the rights of copyright holders and parties with legally acquired proprietary interests, found multiplication to be of necessary condition of infringement and held that no actionable reproduction had taken place in this case.
While this does not cover situations in which ISPs do more than merely communicate—i.e., where they make copies—the court holds that allowing such action to attract liability would produce an absurd result.
The court cites the content neutrality of the caches and the demand for such technology as reasons for allowing such copies to be made without liability.
In reaching this conclusion, the court adopted the proposition set out in Canadian Admiral[4] which held that for a work to be protected by the Act, it must be expressed in some material form capable of identification and having a more or less permanent endurance.
The Board seems to suggest that the duration requirement set out in Canadian Admiral no longer applies as ephemeral copies do not, by their nature, have a more or less permanent endurance.
License Application by Pointe-à-Callière, Montreal Museum of Archeology and History for the Reproduction of Quotations, Copyright Board of Canada [2005] 33 C.P.R.
The Board denied the museum licenses on the basis that the quotes were not substantial parts of the greater work.
Substantiality is to be determined qualitatively and quantitatively based on how much was copied, what specifically was reproduced and how central or essential the material was to the character first work.
The sections of the book in question were original expressions of the facts and events and involved both creativity and literary merit.