CC0 Creative Commons

CC0 Creative Commons


Fair Dealing Support for News Reporting and Public Debate: The Case of Warman and National Post v. Fournier

Having examined the importance of fair dealing for creators and freedom of expression, the fair dealing week posts continue with fair dealing and its support for news reporting and public debate. In recent months, some news organizations have taken aim at fair dealing, arguing that it is a detriment to journalism. For example, Peter Kvarnstrom of the Glacier Media Group has called for fair dealing reform:

Fair dealing within our Copyright Act is a significant detriment to journalism in Canada. Our creators and publishers pay to create content that many news aggregators, including the CBC, republish, copy, broadcast, and sell advertising without compensating the creator or the copyright holder. This must be addressed.

Yet news reporting is included as a fair dealing purpose precisely to ensure that copyright is not used to impede important journalism. Claims that fair dealing is a detriment to journalism fails to understand that newspapers are themselves active users of fair dealing. Reporting frequently builds on prior reports as “advancing the story” will often rely on fair dealing to use portions of previously published works.

A good example how fair dealing can facilitate public debate and foster active quotation, citation, and further news reporting without fear of infringement arose several years ago in the Warman and National Post v. Fournier case. The case involved postings of excerpts of newspaper articles and columns – as much as three full paragraphs out of an 11 paragraph piece – on an online chat board. The court ruled that the copying was insubstantial and did not even raise fair dealing issues. However, it noted that in the event the reproduction was viewed as substantial, it was still covered by fair dealing:

In the alternative, even if the reproduced portions of the Kay Work amount to a substantial part, I find that the respondents’ reproduction constitutes fair dealing for the purposes of news reporting, pursuant to section 29.2 of the Copyright Act.
The SCC’s decision in CCH sets out important guiding principles in applying the fair dealing exception.  The SCC emphasized at paragraph 48 that fair dealing is best understood as an integral part of the copyright regime and as a user’s right, rather than a defence.  In order to avail themselves of the exception the respondents must establish first, that the dealing was for one of the purposes articulated in section 29 of the Copyright Act, and second, that the dealing was fair.

The SCC stated in CCH, at paragraph 51, that the fair dealing purposes (in that case, research) “must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.”  Applying this large and liberal interpretation to news reporting, I find that the respondents’ dealing in respect of the Kay Work falls within this purpose.  They posted the excerpts of the Kay Work on Free Dominion to promulgate the facts recounted in that article.  Thus, the first criterion for fair dealing is met.  The news reporting exception also requires that the source and author be mentioned, which is also satisfied in this case.

The court continued by assessing the six factors under fair dealing, concluding that “balancing all the factors together, I find that the reproduction of the Kay Work falls within the fair dealing exception for the purposes of news reporting.”

A vibrant public forum depends upon the ability to regularly cite, quote and engage with news publications. The inclusion of news reporting as a fair dealing purpose recognizes the critical importance of a free press and the need to ensure that copyright does not pose a barrier to news reporting. This approach is particularly important in the current news environment, where misleading, false or “fake” news often proliferates, requiring pointed, accurate reporting sets the record straight. Since effective responses often rely on quotation and citation, fair dealing emerges as an important legal tool in preserving the ability to engage with other works without fear of copyright liability.

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