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Forget Fair Dealing: National Post Seeks $150 To License Short Excerpts

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Thursday March 07, 2013

I'm a big fan of Chris Selley, the National Post writer behind Full Pundit, a daily look the Canadian editorial and opinion columns (last year Selley was also a vocal supporter of the much-needed Fire Ron Wilson campaign). The Full Pundit features a summary of the most notable editorial writing in Canadian media accompanied by quotations from the original works. I'm quite sure that Selley does not ask for permission to quote from those other works since fair dealing for news reporting purposes permits their use without the need to do so. Yet if someone wants to post a quote from Selley or anything else written by the National Post, they are now presented with pop-up box seeking a licence that starts at $150 for the Internet posting of 100 words with an extra fee of 50 cents for each additional word (the price is cut in half for non-profits).

For example, in yesterday's Full Pundit, Selley quotes John Graham in the Globe on the death of Chavez:

“Illiteracy has all but disappeared. … Education and free health care are almost universally available. … Improving the quality of life for millions at the bottom levels of society is no small achievement. He also imparted to these millions a sense of dignity about themselves and pride in their leader’s often bombastic rhetoric.”

If you try to highlight the text to cut and paste it, you are presented with a pop-up request to purchase a licence if you plan to post the article to a website, intranet or a blog. The fee would be $150. In other words, the National Post is seeking payment for text in an article that was itself copied from the Globe. Of course, it is not just Selley's work as many articles quote from other articles or sources (for example, this Post article on Taylor Swift is primarily quotes from Vanity Fair.  If you highlight a chunk of text, the licence message pops up). If you click no to the pop-up, you cannot copy the text. If you click "quit asking me", the request stops.

None of this requires a licence or payment. In fact, the amount of copying is often so insubstantial that a fair dealing analysis is not even needed. Last year, the Federal Court of Canada ruled that several paragraphs from a National Post column by Jonathan Kay posted to an Internet chat site did not constitute copying a substantial part of the work. If there was a fair dealing analysis, there is no doubt that copying a hundred words out of an article would easily meet the fair dealing standard. In fact, the Supreme Court of Canada has indicated that copying full articles in some circumstances may be permitted.

The National Post is using iCopyright as its licensing service.  The company provides a fair use statement that simply does not reflect the law, suggesting that fair dealing may not apply to the use of work that may generate revenues, is not highly creative, was available under licence, is something more than a footnote, or is posted to the Web. None of these are conditions that exclude the application of fair dealing and the recent Supreme Court of Canada decisions make it clear that the required broad and liberal approach would cover the excerpt copying for which iCopyright seeks payment. All media organizations rely on fair dealing to support a free and robust press. Those same organizations should not be undermining those hard earned users' rights by raising unnecessary licensing demands.

Comments (30)add comment

Scott said:

COPYRIGHT GONE MAD
this is what happens when you "open the gates to hell" soon i will need to bring a lawyer with me when i go to the grocery store!
March 07, 2013

David said:

...
This is what happens when you do not use a pop-up blocker.
March 07, 2013

Mike said:

...
This popup is so painfully easy to get around, it's actually kind of funny. When it pops up and asks you if you want to obtain a license, the three options are 'Yes', 'No' and 'Quit Asking Me'. If you select the third option, you can copy and paste to your heart's content.

Of course, that is beside the point that it is already fair use.
March 07, 2013

Silvia said:

...
Do we have to pay to tweet their content??? It is worst business model possible...
March 07, 2013

Al said:

...
Firefox, with the noscript add-on is your friend. It ensure that you will never see such ridiculous request.
March 07, 2013

FuzzPot said:

NoScript
Or just use NoScript
March 07, 2013

Scott said:

copyright
i'm sure we all know how to get around it, that's not the point though is it.
March 07, 2013

Uncle Wiggily said:

...
Just click through on "quit asking me".

However, that may be circumvention of a TPM ;-)

No wonder the National Post is fighting the Fourniers so hard in the Warman case in the Court of Appeal...
March 07, 2013

BC Bud said:

...
The Copyright Act should have a clause that makes it illegal to implement TPMs that block activities what would otherwise be fair dealing. Unfortunately, it says the opposite. We need to fix the law.
March 07, 2013

Aman said:

Illegal?
If I were to procure a license so that I could copy the quoted Globe&Mail text from the National Post article, would this financial transaction not be deemed illegal under Copyright law as the NatPo would be directly profiting from selling direct Globe&Mail IP?
March 07, 2013

end user said:

...
> However, that may be circumvention of a TPM ;-)

Not if the owner is giving you the option to never be bothered again.

Sooooo what if NP is quoting from someone article in their article, could I pay them to copy that quote, inform the original author who is being quoted that NP is making money off their works and then sue them for something....
March 07, 2013

Michel Fortin said:

Breaks habits
I have the habit of selecting text as I read. It's a little surprising to be asked for a license for selecting some text.
March 07, 2013

Sancho said:

Not necessarily fair use
100 words isn't necessarily fair use, but it's not necessarily infringement either. Their 100 word cut-off makes no sense. In order to assess infringement, they need to see exactly what you copied, and perform the full fair dealing analysis on that content in the context of the entirety of the article and the nature of the downstream use.
March 07, 2013

CL said:

CBC tried this a while ago...
I notice it just vanished into the ether at some point...
March 07, 2013

Byte said:

Let's ask them, shall we?
If you go to http://www.nationalpost.com/index.html and scroll all the way down, you can click on "Copyright & permissions" which takes you here: http://www.canada.com/aboutus/copyright.html

There it says:

Copyright and Permission Rules
The canada.com family of Web sites and Postmedia Network Web sites are protected by copyright law. Copyright © 2010 Postmedia Network Inc. and its affiliated or related companies.

I guess these articles will enter into the Public Domain 3 years early, but aside from that, at the bottom you can find contact information for questions, including a toll-free phone line. I won't publish those here, you can just go there yourself to find them, and maybe have a little chat with the "Licensing Associate" that is listed there (keep it civilized of course).
March 07, 2013

Aunty Maxima said:

...
Maybe the publication should change its name to "National Putz."
March 07, 2013

Tom said:

Doesn't affect safari on Mac
As far as I can tell, it doesn't affect Safari on the Mac. I can copy from both the article identified and from other articles and I don't get a popup.
March 07, 2013

Zaphod said:

NoScript, NO Problem!
Amusingly, this only validates my use of browser plugins such as NoScript (disabling most javascript on a webpage). A few sites have become unusable with NoScript. I mostly just ignore them.

... But with NoScript enabled, no popups occur when I select text at the National Post.
March 07, 2013

Barry Ritholtz said:

http://www.ritholtz.com/blog/
Its just as easy to "View Source" and copy text that way . . .
March 07, 2013

Jim O'Connell said:

Let me play Devil's Advocate for a moment…
I wrote and posted the following long-ish comment over on BoingBoing. It probably should have gone here instead, so I'll paste it below:

Is this such a bad thing?
Let's say you're a publisher want to get a large section of their original content to republish. Larger, say, than anyone would argue would be fair use/fair dealing. Select, copy, license, republish… That seems pretty straightforward, actually, as well as quite reasonable. If you don't want to pay for a license, it lets you skip that part and even lets you turn off the feature. That, again, seems reasonable.

The problem, it seems, is JavaScript. JavaScript isn't capable of recognizing original content as opposed to a quote. It leaves it up to you to decide to pay them when you clearly don't need to. The thing is, iCopyright.com will tell you all of this if you actually click through and read their terms. They talk about fair use. They talk about copyright in a straightforward way, a way that doesn't mislead. Their JavaScript, however, is set to be too aggressive, to fire when only a few lines are selected. They should have set it to more characters…

What if this was a PayPal 'Donate' feature instead of some evil commercial venture? Would anyone object to a feature that popped up when you select and copy? Something that said "Hey, I see you're copying from my blog. If you're going to republish and you'd like to donate a few dollars, do so here:" I don't think anyone would be whingeing about that, except, perhaps, to note that right-click actions like that are out-of-fashion.

So what happens if you ignore all of this and just copy, paste and republish? iCopyright, the service that does all of this, has a feature that alerts the site owner when it finds republished excerpts, then lets *you* decide if you want to seek remuneration. You know, *exactly the same way it's always worked* when you find someone has republished your stuff.

That's right. It's essentially changed nothing, just created a mechanism for rightful payment, along with a reminder that is easy to ignore. Is it perfect? no. Is it possible to pay for content needlessly? Sure thing. That is not, however, unique to this service. You can even pay for things like this, if you are so easily parted from your money: http://amzn.to/WOZEsd

I've been putting my words and photos online for 20 years. In that time, I've shared lots via CC, sold a lot and had lots reused wrongfully. There are times when a service like this would have been great, truthfully.
March 08, 2013

Bill said:

Media expert
This is a clear and obvious example of 2 issues:
1. The Post (along with many other mainstream media publishers) don't 'get' the Internet
2. Canada needs a public and open version of Canadian Newswire, the now privatized news and information service. A public version would encourage the distribution of news and information, not try to consolidate it.

On the latter item, I suggest we all look to the CBC to create this infrastructure. Once they shed the yoke of the Con PR machine, that is.
March 08, 2013

Heather said:

I agree with Jim O'Connell
I think Jim is right - you can ignore the request for payment, but it's up to the individual to decide whether they are within the fair dealing exception, or not. This is how it's always been, isn't it?
March 08, 2013

Devil's Advocate said:

@Jim:
The objection here has nothing to do with being asked to pay for a license when such a request is justified. The obvious points of contention would have to be:

1) The payment request is not coming from anyone who could possibly have the rights to charge such a license.

2) If any rights holder exists in this example, what assurance does anyone have that the payment is going where it should (and, that there won't be any legal repurcussions from the rights holder should the payment NOT be going there)?

3) This type of mechanism assumes the power to "gauge" and determine Fair Use itself, through automated software functions. That's as insane as it is impossible. And to place that "gauge" at a threshold of "100 words", is already violating Fair Use rights.

I take it by what you're saying that you have content rights that you feel the need to enforce. The problem with many of today's rights holders is that they have this bizarre idea that everyone else in the process - the users, the providers, the websites, ad infinitum - is somehow morally and/or legally bound to provide the time, resources, costs and means to protect your copyrights for you.

You and someone else referred to "how it's always been". "How it's always been" also includes the part about the rights holders having the responsibility to protect their own copyrights. If your copyrights appear to be violated, you pursue the legal actions afforded to you, and invest the time and costs associated with them.

Instead, we're seeing all these little schemes being proposed to "automate" this responsibility, pass on the costs to someone else, and worst of all, interfere with the very functionality of the WWW itself.

As far as I'm concerned, today's rights holders are attempting to expand the scope of those rights far beyond reason and reality. It's one thing to write something truly original and inspiring, while completely another thing to repost news stories (which themselves are usually compiled from recycled content). Yet, it seems the ones who are doing all the remixing think the content warrants a license at every level of the game.

The most insane part of all this is that while the Internet continues to demonstrate that copyright simply can't survive online, we've got all these rights holders going through complete contortions trying to nail down everything that makes the Internet what it is, in a futile effort to protect that which has already gotten away from them the moment they released it to the wild.
March 08, 2013

Anonymous said:

I actually agree with this...for once
I think every site should be REQUIRED to make the licencing of its material this easy, just in order to qualify for any copyright protection at all. But to be fair, it's a question of price, and it should be related to the size of your audience.

You should be free to pass news around to your friends, but if you're a popular blog, making lots of money, you should have to pay the full $150 bucks, or you could see yourself getting sued for, say half of your profit, if half of your content comes from one rightholder. However, if you get stuff for your blog from all over, then you're curating, and that's fair dealing, so there's no charge for that in any case. Make it reasonable. Plus punitive damages and fees, perhaps, but please don't call it a crime to spread news, or I would say, good art either.
March 10, 2013

Bob said:

...
I don't recall the SCC saying that fair dealing allowed reselling asomeone else's work for profit. And what the National Post is doing is preventing copy/paste, which they could probably do through the file formats they use. Nothing prevents you from rekeying the material that you want.
March 11, 2013

Bob said:

...
And hasn't the Globe & Mail been doing this for years?
March 11, 2013

Curious said:

...
And what happens when you click quit asking me? do you get chalked up to some statistic saying that so many Canadians are stealing just for highlighting text? Will our IP's be recorded in some list and then we get sued for copyright infringement? Just for highlighting text, not even copying yet at that point.

It doesn't matter if other sites have done this many times in the past. It doesn't make encouraging extortion, albeit on a voluntary basis for now, any better.
March 11, 2013

Bob said:

...
Fair dealing has to be just a bit more rigorous than a personal decision that it is fair dealing.
March 11, 2013

Shelly said:

Do we have to pay to tweet their content??? It is worst business model possible...

Do we have to pay to tweet their content??? It is worst business model possible...
registry cleaner
March 14, 2013

Diana said:

no problem
As far as I can tell, it doesn't affect Safari on the Mac. I can copy from both the article identified and from other articles and I don't get a popup.
wiserecovery
March 15, 2013

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