Susan Deefholts, Author at

Copyright Law – Susan Deefholts

The new copyright provisions under the revised Copyright Act, most of which came into effect on November 7, 2012, have a number of implications for Canadians. As discussed in our previous issue of LegalEase, copyright protects the right to copy original works. This right to copy vests with the creator of the work, but can then be assigned or licensed to other parties, such as publishers, film distributors, television stations and so on.

Almost all of us make use of copyrighted material in our daily lives, be it while reading newspapers and blogs, looking at photographs, or watching television and film. When we buy a newspaper, visit a website, purchase a song on iTunes or subscribe to a streaming service like Netflix, we are making use of copyrighted material in a legitimate way. Copying and pasting images or text without permission, downloading media such as movies, television, music and books, via “underground” services like BitTorrent, are examples of non-legitimate uses of copyrighted material. In our previous issue, we dealt with two types of permitted exceptions to the restriction on copying creative works: format shifting and time shifting.

In this issue, we will explore another important set of exceptions to the restriction on the right to copy. These uses fall under a category known as “fair dealing”. In addition to time shifting and format shifting, Canadian copyright law now contains expanded exceptions related to certain public interest outcomes. This may, for instance, result in further changes to how we, as users, will be able to borrow books from public libraries in order to ensure that there is user compliance with these new requirements, when using applications like OverDrive, which is the mobile, e-book platform used by the Kitchener, Waterloo and Guelph Public Libraries.

There are also several changes pertaining to uses of copyrighted materials by educational institutions and individuals acting under their authority. For instance, if a work is not commercially available in Canada within a reasonable timeline, for a reasonable price, then an educator can reproduce the work, or do any other necessary act, in order to display it for educational purposes. There is a significant ambiguity with regard to how “reasonable” may be interpreted, however, the introduction of this exception makes it easier for educators to be able to make use of works that they deem to be useful teaching tools without needing to expend significant time and resources trying to avoid running afoul of the Copyright Act.

Another education-related exception will be of interest to those who are enrolled in distance education classes–namely, that students are now explicitly permitted to reproduce lessons that are broadcast via telecommunications, provided that the recordings are destroyed within thirty days of the students’ receipt of their final course evaluations. These recordings cannot be distributed.

A final type of exception to the restrictions on copying can be found in the context of what is known as non-commercial “user-generated content”, and colloquially referred to as the “mash-up exception.” This refers to the types of videos that are often available on YouTube, in which the creator has spliced together clips from a variety of different films, television shows and videos, often with mixed snippets of different soundtracks, synchronized appropriately to create a new work. These derivative works are often created as a tribute to the original, or for the purposes of satire or humour. Though mash-ups are now permitted, there are a few restrictions that must be adhered to, for instance, the new work cannot be used for commercial purposes, should credit the original creator or rights holder, and should not have a substantial adverse effect, financial or otherwise, on the original work.

These additions to the fair dealings exception to the general restriction on the use of copyrighted material reflect much needed changes to legislation, especially given today’s technological advances.

For questions regarding fair dealing and the Copyright Act, please contact Susan Deefholts.

Article written by Susan Deefholts, B.A., J.DSusan was called to the bar in 2013 and is a member of the Family Law Group working out of our Guelph office.

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Family Law – Susan Deefholts

The end of a marriage marks a time of transition, upheaval and emotional challenges. For those who are legally married but separated, or who are in a subsequent, long-term cohabiting relationship while separated but still legally married, it also creates a number of uncertainties around the status of wills and beneficiary designations in the event of an untimely death.

Two recent decisions from the Ontario Court of Appeal appear to have introduced some clarity to the matter. In both decisions, the Court affirmed that the legally married surviving spouse, although separated, benefited from the deceased spouse’s estate.

In Carrigan v. Carrigan Estate, the Court reviewed the application of the spousal priority rule under the Pension Benefits Act (PBA). Generally under the PBA, even in cases where a pension holder designates a beneficiary other than the pension holder’s spouse to receive their benefits, a spouse will receive the benefit of the pension upon the pension holder’s death. The PBA does provide an exception to this rule where the pension holder is living separate and apart from the spouse on the date of death, in which case the spousal priority provisions under the PBA no longer apply.

In Carrigan, Ronald Carrigan separated from his wife, Melodee Carrigan, in 1996, but they never divorced. In 2000, he moved in with Jennifer Quinn, with whom he cohabited until the time of his death. The issue before the Court of Appeal was the application of the spousal priorities as, in this case, both Ms. Quinn and Mrs. Carrigan qualified as the “spouse” under the PBA.

The Court examined the PBA and ultimately concluded that, if the pension holder dies before retirement and is cohabiting with someone while separated from a legally married spouse, the word “spouse” refers only to the legally married spouse, thus excluding Ms. Quinn from receiving any benefit of the spousal priority under the Act. As Mr. Carrigan had been separated from Mrs. Carrigan at the time of his death, the PBA’s subsections dealing with spousal beneficiaries had no relevance to the allocation of Mr. Carrigan’s pension benefit. Instead, the listed beneficiaries on the plan would receive the benefit. In this case, the designated beneficiaries remained Mrs. Carrigan and the two children she had with Mr. Carrigan.

The Court’s interpretation of the PBA has implications for anyone who is eligible under a pension plan and is in a long-term common law relationship but legally married and separated from a former spouse. The spousal prioritization provisions of the PBA will not apply to provide the common law spouse with any rights to the benefits if the pension holder is still legally married to a former spouse. But the provisions do permit pension holders to designate beneficiaries under the PBA.

The Court of Appeal faced a similar issue in Makarchuk v. Makarchuk, holding that, after separation from a legally married spouse (but not divorce), the deceased’s will, which named the spouse as beneficiary, still applied. This remained the case even though the parties had signed a separation agreement containing standard wording wherein each party agreed to the release of rights “which he or she has or may acquire under the laws of any jurisdiction in the estate of the other.” The Court held that this wording was only sufficient to override any statutory rights. The will, as a private document, governed. The Court was mindful that the deceased, who was a retired lawyer, could have taken steps to revoke the will. He did not.

These decisions remind us that, upon separation, there is more to consider than just the equalization of property. Separating spouses should take additional steps to protect their assets, including executing new wills and powers of attorney, and changing beneficiary designations where applicable. These issues should also be revisited when entering into new long-term relationships.

* * This article is intended only to inform or educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

Author: Susan Deefholts is a lawyer at Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario.  Susan may be reached at (519) 836-1510 or <>.   

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