Free Dominion is a Canadian-based political news website where users regularly post articles or link to online content for the purposes of political debate. On January 10, 2008, an eleven-paragraph column by National Post columnist Jonathan Kay was posted to the site. When the Post complained in April 2010, the column was replaced with shorter excerpt that included the same headline along with 3 full paragraphs and one half-paragraph. A month later, a site user posted a link to a photograph that was posted on the photographer’s website. The photograph itself was not posted as only a link was used.
These postings and links were not particularly unusual – similar actions occur millions of times every day – yet soon after, Free Dominion was hit with a copyright infringement lawsuit claiming the posting and the link violated the Post and photographer’s copyright.
Last week, the Federal Court of Canada issued its ruling, dismissing both claims (along with a claim over the posting of a second article for which the limitation period to sue had expired). The decision has enormous implications for Internet users, news organizations, and free speech in Canada as it removes much of the legal uncertainty surrounding sharing information online.
The court dismissed the Post claim over the article excerpt on two grounds. First, it ruled the amount of copying involved did not constitute a “substantial part” of the work and therefore there was no infringement. While many assume that anything more than a sentence or two goes beyond insubstantial, the court’s ruling sends a signal that a more liberal approach is possible. If the decision is upheld (an appeal seems likely), it will have significant implications for copying in a wide range of venues including collective licensing for educational institutions.
Second, the court also ruled that even if the copying was substantial, it was still non-infringing since it qualified as fair dealing. The court noted that fair dealing should be given a broad interpretation and that the “news reporting” category could include posts of excerpts to an online discussion forum.
The fair dealing analysis is crucial since it affirms that copying several paragraphs of an article to report on its contents is itself news reporting. The decision alleviates legal concerns for bloggers, news aggregators, and other online sites that often capture a news headline along with a paragraph or two to provide the reader with an introduction to the article’s contents.
The court’s analysis of linking to the photograph also addresses a key issue as it had no trouble concluding that the link was not copyright infringement. The court rightly noted that the photographer authorized the communication of the work by posting it on his own website and was able to remove it if he did not want others to link to it. From a legal perspective, the court said that the communication of the work could not be viewed as unauthorized, since the photographer had implicitly authorized others to access the photo by posting it online.
This aspect of the decision should largely eliminate fears that linking to copyright materials somehow raises potential legal risks. Last year, the Supreme Court of Canada ruled against attributing a defamation claim to such links and now the Federal Court has concluded that links to authorized postings cannot be said to constitute unauthorized communication and therefore infringement.
For Internet users accustomed to posting, linking, tweeting, pinning, or otherwise communicating the news of the day online, they can breathe a sigh of relief as the decision sends a strong signal that such activities fall within the law.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can reached at firstname.lastname@example.org or online at www.michaelgeist.ca.