Canadian Court Issues Triple-Whammy Ruling In Favor Of Free Speech And Commentary Online

from the fair-dealing dept

Tue, Jun 26th 2012 3:06pm — Leigh Beadon

Close on the heels of Canada's recent copyright reform bill (which despite significant problems also contains some fantastic language that carves out important new exceptions to copyright) the Federal Court of Canada has issued a significant ruling that answers some key questions about copyright online. The decision is in a lawsuit filed by Richard Warman and the National Post against the operator of a forum, and looks at two main points: the right to quote news articles, and the right to link to a photo. On the first question, the court made it clear that even a several-paragraph quote is protected, on not just one but two levels:

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.

Both aspects of that part of the ruling are clear and could have a huge impact on copyright licensing in Canada. Perhaps most notably, as Michael Geist also points out, it raises even more serious questions about the disastrous situation surrounding Access Copyright negotiations at Canadian colleges and universities, and makes the already terrible deal (which many schools are signing on to) look even worse. Unfortunately, since the AUCC all but abandoned its members in those negotiations, many schools will have a hard time benefitting from this ruling—but for those universities that have decided to reject the deal and fight the good fight, the ruling represents a substantial boon to their position.

On the subject of linking to a photo, the decision lays down a third important standard, and is again unequivocal about doing so:

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.

To many of us, that's just common sense: putting something on the internet constitutes a public invitation to link to it. But for years, time and time again we've seen courts and companies around the world attempt to claim that linking is infringement, or otherwise not allowed. And, indeed, this also has serious implications for the Access Copyright agreement, which has schools paying licensing fees and obeying rules for linking to material, despite it becoming clearer and clearer that copyright does not cover these activities.

All told, this is an excellent decision, and offers further proof that Canada has the very real potential to move copyright law in a positive direction. There are still lots of battles to be fought, but there's also a genuine emphasis on the rights of users (especially in the courts) that can hopefully be harnessed and nurtured more and more over time.

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Filed Under: canada, fair dealing, jonathan kay, linking, richard warman
Companies: access copyright, national post

40 Comments

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silverscarcat (profile), 26 Jun 2012 @ 3:11pm

*Claps*
Why is it that those silly Canadians can get stuff right but the rest of the modern world is ass-backwards at doing?
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justok (profile), 26 Jun 2012 @ 3:25pm

Re: *Claps*
Better beer helps.
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Anonymous Coward, 26 Jun 2012 @ 3:58pm

Generally news involves the reporting of factual information. That in and of itself should squash most copyright claims seeing as there are not many elements to an article that could be protected.
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PlagueSD (profile), 26 Jun 2012 @ 4:21pm

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 is a perfect example. Artist puts links up on website. If he doesn't wany anyone linking to his stuff, he should post with watermarks, or he could *GASP* remove the picture from his site, effectively breaking all the links. There's no need to go crying to the nearest court.
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blaktron (profile), 26 Jun 2012 @ 4:21pm

Re: *Claps*
People here don't have to worry about how they are going to pay for getting sick, how they are going to ensure their kids get a decent education, or if someone in a country half way around the world is going to blow up my family because my government blew up his.

When you don't have these ever-present fears, its a lot easier to watch your government to ensure they don't strip you of all your freedoms.
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Anonymous Coward, 26 Jun 2012 @ 4:32pm

So we are doing the 1 step backwards, 2 steps forward approach. Hopefully we'll get to take another step forward once we get the digital locks repealed.
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Anonymous Coward, 26 Jun 2012 @ 4:33pm

Re:
Or if we just get the legislative branch to realize they are facing the wrong way, so the judicial branch doesn't need to keep turning them around.
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Anonymous Coward, 26 Jun 2012 @ 4:35pm

...Federal Court has concluded that links cannot be said to constitute unauthorized communication and therefore infringement.

Did I understand what I just read and C&Ped here? Am I to understand that Canada's position is that hyperlinks are not infringement? Oh, isn't the CRIA gonna have a ball with that. It puts a huge hole in the idea that infringement consists of hyperlinks.
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Xanthippa, 26 Jun 2012 @ 5:17pm

precedent-setting court ruling
I actually 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!
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Rekrul, 26 Jun 2012 @ 5:51pm

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.

It should put an end to such claims. Sadly, it probably won't...
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Mike M (profile), 26 Jun 2012 @ 6:01pm

Any time you see Richard Warman's name in a lawsuit you can guarantee that there is an attack on free speech going on.
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TDR, 26 Jun 2012 @ 6:20pm

Re:
With a name like WarMan, was there any doubt?
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This comment has been flagged by the community. Click here to show it

Anonymous Coward, 26 Jun 2012 @ 8:41pm

What is with your constant posts about Canada?

Nobody gives a wild flying fuck about Canada.
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Chargone (profile), 26 Jun 2012 @ 8:43pm

Re:
perhaps put an end to such claims actually getting anywhere?
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Mike (profile), 26 Jun 2012 @ 9:10pm

Re: your comment
Canadians do....you idiot!
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Anonymous Coward, 26 Jun 2012 @ 9:10pm

Re:
More to the point, nobody gives a flying fuck about your immature posts.
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Midnight (profile), 26 Jun 2012 @ 9:56pm

Re: *Claps*
It's quite obvious that Canadians aren't as silly as you make us out to be, considering that we use our brains to make important decisions.

Something you guys may want to consider!

First rule of thumb would be to elect smart officials and not morons who can't find their butts with both hands and a map, which is what you have now!

Our Health care works, whereas yours is non-existent!!
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Midnight (profile), 26 Jun 2012 @ 10:02pm

Re: What is with..
You should and many people do.

Keep in mind that nobody's ever bombed Canada, especially our own Government and we have Healthcare that works!!

Osama Obama can't even formulate one, let alone get it off the ground!

We drink good beer and not that dish water swill that you clowns guzzle by the gallon, just to get a buzz!

Food for thought!
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Midnight (profile), 26 Jun 2012 @ 10:06pm

Re: Re: *Claps* blaktron
Very true and to the point.

American arrogance and ignorance will defeat them every time!

It's no wonder many of them are illiterate and don't have a clue as to where Canada is!
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G Thompson (profile), 27 Jun 2012 @ 12:32am

Re: Re:
Well in Commonwealth law countries anyway (not UK) though I still suspect the USofA will try to extradite anyone from those countries who dares to link to world viewable information. Soft terrorism of thee linkages must be stopped *eyeroll*
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G Thompson (profile), 27 Jun 2012 @ 12:37am

Re:
Strangely it's getting to the point that the rest of the worlds (and it's courts) is starting not to give a flying fuck (or anything else) to the 5% of the world that is acting like a petulant child. [for those not paying attention that child is the USofA and it's corporate cronies]

Major precedents in Canadian courts can and do affect legal proceedings in a lot of countries that have populations totalling lots more than the USA and vice versa (ie: iiNet in Australia, Patent law on generic medicines in India, etc etc).
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Anonymous Coward, 27 Jun 2012 @ 1:34am

makes a change for a court to make sensible decisions over copyright and what is or isn't potential infringement instead of bending over and taking it up the rear from the entertainment and related industries. now, if only that sense could be copied (pun intended) to other countries!
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Ninja (profile), 27 Jun 2012 @ 3:58am

I've followed Canada copyright situation for a while (and read a lot of Michael Geist excellent articles on the issue) and there have been quite bumpy rides over the last few years. Still, this is one major win that could help setting precedents elsewhere in the world.

This year has been quite special. While it is a stormy year as The Pirate Bay fellas said (and predicted) it would be in the beginning of the year, the people also scored some significant victories. While we are living convoluted 'copyright' times I see the end of the storm ahead in a few years.
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Niall (profile), 27 Jun 2012 @ 5:58am

Re: Re: *Claps*
Are we back to the Labatts debate?

Shouldn't you then say: "Better serial killers help"?
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Niall (profile), 27 Jun 2012 @ 5:59am

Re: Re: *Claps*
'Smart' officials like Harper? :)
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Niall (profile), 27 Jun 2012 @ 6:04am

Re:
That's like saying no-one gives a flying fuck about Mexico - try saying that down in Arizona! Oh wait, maybe that's where you are. In which case, go back home!

This blog covers global tech & IP issues, since these things spread further than just the quaint backyard of 'Murrica. Like for instance, the discussion of imported goods maybe not having first sale right. Or large chunks of the rest of the world rejecting your domineering 'treaties' like ACTA and TPP.

Please feel free to crawl back into your trailer and ignore your dependency on the rest of the world. Much good it's done you before.
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Leigh Beadon (profile), 27 Jun 2012 @ 6:52am

Re:
Except, you know, anyone with half a brain. And every American diplomat. And every American president. Basically anyone smart/mature enough to get past the "hurr hurr, Canada's dumb, duhrrr, I'm an awesome American!" jokes and realize that we are one of your closest, most important allies and trade partners, and longest, most dedicated friends.
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Anonymous Coward, 27 Jun 2012 @ 7:10am

Ignore!
If only we could learn to ignore those childish comments instead of allowing them to draw us off topic... which was the original AC's intention in the first place!
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Anonymous Coward, 27 Jun 2012 @ 7:12am

Re: Re:
Especially when we decided to "Thank you" for your invasion of 1812 by paying your White House a visit and doing a little redecorating. =P
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Anonymous Coward, 27 Jun 2012 @ 10:52am

Re:
Considering our frozen neighbors to the north are only a stone's throw away for me, and if I can ever find a loophole that would allow me emigration I'd be there in a heartbeat.... yeah, I do care. But thanks for trying to speak for me and everyone else.
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And Yet, 27 Jun 2012 @ 11:15am

Re: Re: *Claps*
They still do their best to strip those freedoms at an alarming rate.

Omnibus bills, passing legislation in the middle of the night, special police powers, no transparency in budgets, illegal lack of transparency in departmental budgets...sad times with Cons at the helm
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Jesse (profile), 27 Jun 2012 @ 11:35am

Re: Re: *Claps*
As much as I like this ruling, my reaction is bittersweet.

Free Dominion is a racist forum dedicated to holocaust deniers and neo-nazis.

I wouldn't be so quick to praise Canada in this case, given these horrible people living within our borders.
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Jesse (profile), 27 Jun 2012 @ 11:38am

Re:
Yay for the freedom to advocate for genocide and deny the holocaust! Long live Canada!
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Jesse (profile), 27 Jun 2012 @ 11:40am

Re: Re: Re:
lol.
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blaktron (profile), 27 Jun 2012 @ 1:28pm

Re: Re: Re: *Claps*
Its almost exactly like the 10 years of liberal corruption before that, welcome to a majority government in a parliamentary system!
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Xanthippa (profile), 27 Jun 2012 @ 3:16pm

Re: Re: Re: *Claps*
@Jesse

Your statement is simply untrue.

Part of the Fournier's counterclaim against Warman was that he is using the 'maximum disruption' technique (which he has promoted) against them.

Warman's defense to this was that he does not believe the Fourniers themselves are neo-nazis or nazis of any kind and that he is convinced that their site does not contain any neo-nazi or holocaust-denying material. Warman himself insisted that this be made part of the court record.

His defense was that since he only uses 'maximum disruption' against people he believes are neo-nazis, and he does not believe that either the Fourniers or their forum is neo-nazi, he could not possibly be using the 'maximum disruption' thingy on them.

Ms. Fournier pointed out that this line of defense by Mr. Warman is a no-starter: it would be like punching a brunette in the head, then offering the defense that he could not have punched the brunette because he has a strict policy of punching only blondes in the head...

It got a chuckle in the courtroom - including from Warman's own lawyer.
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Leigh Beadon (profile), 27 Jun 2012 @ 4:24pm

Re: Re: Re: *Claps*
As much as I like this ruling, my reaction is bittersweet.

Free Dominion is a racist forum dedicated to holocaust deniers and neo-nazis.

There's a reason I didn't even name or mention the defendants in the post :) It's the ruling that matters. I certainly wouldn't want these important free speech concepts being thrown out just because of the views of the first people who happened to test them
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Jesse (profile), 27 Jun 2012 @ 11:25pm

Re: Re: Re: Re: *Claps*
Yea I agree. I guess the thing that frustrates me is these individuals always present themselves as defenders of free speech, when really they are trying to do really horrible things. A lot of these neo-nazi people will literally track you down and hurt you if you actively oppose them in any meaningful sort of way.

I am happy for this particular ruling. I also support, to an extent, Canada's approach to limiting hate speech.
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Jesse (profile), 27 Jun 2012 @ 11:33pm

Re: precedent-setting court ruling
I don't think most of the insightful voters would want the "freedom" for which free dominion advocates.
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Anonymous Coward, 28 Jun 2012 @ 3:23am

Re:
If no one cares about Canada why are you trying to make their copyright laws harsher?
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