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Cdn Fed Court Says No Copyright Infringement For Linking, Posting Several Paragraphs from Article

The Federal Court of Canada has issued an important decision involving copyright and posting content online. The case involves a lawsuit launched by Richard Warman and the National Post against Mark and Constance Fournier, who run the FreeDominion website. Warman and the National Post sued the site over the appearance of two articles and an inline link to photograph that appeared on the forum. The court dismissed all three claims.

While the first claim (Warman’s article) was dismissed on the basis that it took too long to file the lawsuit, the legal analysis on the National Post claim involving an article by Jonathan Kay assesses the copyright implications of posting several paragraphs from an article online. In this case, the article was 11 paragraphs long.  The reproduction on the Free Dominion site included the headline, three complete paragraphs and part of a fourth. The court ruled that this amount of copying did not constitute a “substantial part” of the work and therefore there was no infringement. The court added that in the alternative, the reproduction of the work was covered by fair dealing, concluding that a large and liberal interpretation of news reporting would include posts to the discussion forum.  The decision then includes an analysis of the six factor test and concludes that the use was fair.

The court’s discussion is important for several reasons. First, the finding that several paragraphs do not constitute a substantial part of the work has echoes to the Supreme Court of Canada hearing in December when the court opened the door to questions about some of the copying in schools not rising to the level of substantial copying. Moreover, if this amount of copying is not substantial, it has implications in a wide range of additional cases (including the Access Copyright model licence). Second, the court’s conclusion is critically important to online chat forums, blogs, and other venues where copying several paragraphs from an article is quite common. Given the court’s analysis, such copying appears to be permissible on at least two grounds, including the notion that such postings can be treated as news reporting for fair dealing purposes.

The third claim involved a link to a photograph posted on the photographer’s site. The court had no trouble concluding that the link was not copyright infringement, rightly noting that the photographer authorized the communication of the work by posting it on his website. This finding should put an end to claims that linking to copyright materials somehow raises potential legal risks. The Supreme Court of Canada has already ruled against attributing defamation to such links and now the Federal Court has concluded that links cannot be said to constitute unauthorized communication and therefore infringement. The implications once again extend to forums, blogs, and other venues as well as the Access Copyright model licence.

16 Comments

  1. Will Access Copyright be posting rebate cheques to the institutions that have already signed on?


  2. Will a court rule No Copyright Infringement For Linking movies and music too? That’s what I really want to hear. :)

  3. Barry Sookman says:

    Michael, I think you are misreading the case. The para on linking says:

    “Counsel for the applicant argued that the respondents cannot rely on the fact that the Barrera
    Work was posted on the applicant’s website because that would amount to “blaming the victim”.
    However, the applicant is only a victim of infringement if the respondents did something only he
    has the right to do without his authorization. As the respondents submit, the Barrera Work was
    within the applicant’s full control and if he did not wish it to be communicated by
    telecommunication, he could remove it from his website, as he eventually did.”

    The Court is saying that the applicant can’t complain of infringement because he had authorized the communication e.g. had consented to it. Note, the court says that there was a communication by virtue of the link, suggesting the opposite of what you claim; that is, that the link resulted in a communication.

  4. FreedomLoving says:

    http://www.bbc.co.uk/news/uk-england-south-yorkshire-18577003
    Wikipedia founder starts petition to stop extradition of Richard O’Dwyer

    All Canadians (and people everywhere) will now have to live their lives in fear of expensive lawsuits and being extradited to the U.S.. (I’m assuming that pretty much every one has committed at least minor non-commercial copyright violations. If not, it’s easy enough for a malicious person to dump copyright violations onto your computer, or to falsify web logs and make an accusation.) The “freedom-loving” United States is now the world’s foremost authoritarian and oppressive superpower.

  5. Michael Geist says:

    @Barry Sookman
    Barry,

    I don’t think I’m misreading the case. I read the court as saying you can’t infringe content by linking to it, since its availability online means that someone has authorized it as the court finds that “making a work available on an internet website accessible to the public constitutes authorization of communication by telecommunication.” If that is the copyright owner (as in this case), they cannot complain of unauthorized communication. If that is someone else, the copyright owner’s claim lies with that person, not the person who linked to it.

    MG

  6. Barry Sookan
    Barry,
    i’ll believe Mr. Geist over a lobbyist anyday. He has no agenda other that stating facts. we can’t say the same for you can we.

  7. Barry Sookman says:

    Michael, where the content owner posts the work he/she may be implicitly consenting to its being linked to. That would be similar to the holdings in the US where a person who posts a work implictly consents to its being indexed and cached unless it uses “do not crawl” codes. But, a person who posts a file without consent of the owner is not in a position to authorize or provide a consent to its further communication. This case suggests that in such situation there would be a communication.

  8. Don’t you just love the way legal rulings make it all so crystal clear?

  9. This will be appealed, as it’s shaky on several grounds. If posting nearly half an article isn’t “substantial”, then the concept is meaningless. And how can copying what someone else put on THEIR news site be considered fair dealing for the purpose of news reporting? Why even both with journalism – just let one paper put up a story and then everyone else can take it. Next, a key part of the fairness determination is the number of copies, and impact on market. If a story is taken and published on another site, the original publisher loses business, in this case site traffic. And finally, Bill C-11 will address the implied consent issue by allowing a copyright owner to make it clear that their content cannot be copied without permission.

  10. Erica Hargreave says:

    Ridiculous that copying 11 paragraphs did not constitute a “substantial part” of the work. Makes you question if the Federal Court of Canada understands the typical size of an online post.

  11. Xanthippa says:

    I sat in the courtroom as a spectator for both parts of this, first a hearing about what evidence can be presented and then the case hearing itself.

    The Fourniers – the defendants in this – have been the subjects of many lawsuits by people trying to curb freedom of speech on the internet. They have already set a previous legal precedent in Canada to protect the identity of the users of their forum from cyber-bullies: now, they have to prove that there is a prima facie case for defamation before a user’s id is handed over to a person who wants to sue them.

    It is important to note that by now, the Fourniers (who run Free Dominion) are low on funds and had to represent themselves in court. So, Connie Fournier, a computer scientist, went up against some very high priced IP lawyers – and won a bit more freedom for us all!

  12. Adam Guerbuez says:

    Excellent
    This ruling just opened up many options for content within a whole new profitable venture I have in the works. Thanks for the heads up Mr. Geist.

  13. jasper park says:

    The Fourniers are seeking help to defend themselves against a continuing lawfare campaign.

    http://www.freedominion.com.pa/phpBB2/viewtopic.php?f=70&t=156252

  14. @Adam
    I realize that copyright law interpretation is in the eye of the beholder, but I am surprised that a law professor thinks that this decision is correct. Copying someone else’s story is news reporting? And it’s fair? What that means is that the first story out becoems free content for every competitor, which is what Adam seems to be suggesting. And ruling that if you publish anything on the web, you are giving permission for everyone else to use it? The sad thing about this is that there will obviously be an appeal, and the defendants will likely lose and then get hit with huge legal costs.

  15. Read the post
    Just pointing out that it helps to read the full post before posting in the comments. I.E. the full article was 11 paragraphs long, not the copied material. The poster only copied 3 and a bit of the fourth.

    I’m not even sure why I’m posting this. If you’re still reading, you’re probably not the point and post trolls that it’s intended for.

    However if you are, here’s my counter. Some authors like to add lots of adjectives and repeat themselves. Substantial must be subjective because in one case, copying the core paragraph from an article that’s ten pages long may be enough to infringe provided that the copied paragraph completely eliminates the need to read the original article. One person’s ten words, or 10% is never the same as another. Funny enough, a summary would accomplish the same thing, generate absolutely no traffic to the original site and would probably not be infringing. At least linking has some kickback.

    Lastly, I would like to hear what your definitions of substantial would be. I’m sure Google would love to have a chat with you. Seeing as how their entire news site is nothing but excerpts. Another good one is fark. In fact, fark is better, because the news is so obscure that most of it’s traffic would never have accured had it not been for the linking. Hence, a site getting farked. (So much traffic the servers crash)

    If you’ve read all that, kudos to you :)

  16. Be Careful…
    The post above and several of the responding comments imply that the court examined only the proportion of the work posted when deciding whether or not that post constituted a “substantial part” of the original material. The only quantitative benchmark mentioned in the decision is that “the reproduction constitutes less than half the work”. Clearly Justice Rennie cannot be suggesting that “substantial part” be determined by a simple 50/50 test so it seems clear that he made the determination based on qualitative rather than quantitative properties. More relevant than the simple ratio of the published material to total length is the comment “Most of the commentary and original thought expressed by the author is not reproduced.”
    I only mention this because if one did not read the full decision and were relying on this summary to inform future practices they may be lulled into a false sense of security when posting less than 3 of 11 parts of a copyrighted material.