National Post Wants $150 To Quote Articles (Even The Parts It Quoted From Other Articles)

from the double-standard dept

Update: Since this morning, National Post seems to have disabled this feature. Whether the change is permanent or not I can't say.

Despite three years of journalism school and several more working at newspapers, I'll never understand the double standard that journalists and publishers have when it comes to copyright and fair use/fair dealing. The act of reporting relies heavily on the latter, and the news business would be a very different place if newspapers were expected to pay licensing fees on the quotes they gather from experts, reports and other sources. Thus, newspapers have traditionally been staunch defenders of fair use—that is, until they find themselves on the other side of the equation.

Through Michael Geist we learn that Canada's National Post (disclosure: I used to work for the paper as a freelancer) is trying out a highly disruptive new "feature" that attempts to scare people out of quoting the articles without paying up:

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. ... If you click no to the pop-up, you cannot copy the text. If you click "quit asking me", the request stops.

I've seen newspapers with "license calculators" for quotes before, and of course we've all seen websites that frustratingly interfere with your copy-and-pase or right-click abilities—but this is the first time I've seen the two combined. The system is driven by iCopyright, a plugin that promises to make it "super easy" for people to license your content, but I guess not so easy that people won't hopefully feel compelled to pay.

This isn't just a dumb idea—it's a really hypocritical game for a newspaper to be playing. Geist underlined the irony by pointing to the regular Post feature Full Pundit, in which writer Chris Selley does a roundup of editorial and opinion columns from the week in Canadian media. Naturally, this involves lots of quotes and snippets from these other media sources, which Selley then expands on or disagrees with or otherwise comments upon—all unlicensed quotes, the use of which is clearly protected under Canada's fair dealing laws for commentary and criticism (and would be equally protected in the US under fair use laws). But if you try grabbing a snippet from Full Pundit, you'll be asked to pay a license. Worse still, if you try to grab one of the quotes from another newspaper on the National Post site, you'll still get the same popup telling you to look into licensing options... for a quote they don't own and are themselves using for free on the basis of fair dealing.

The popup does not mention fair dealing or fair use. It takes some digging to find iCopyright's fair use statement, which is a masterpiece of menacing disingenuousness. As we've noted in the past, the fact that the boundaries of fair use and fair dealing are often unclear creates a massive chilling effect, since people are unsure about their rights and not always willing or able to fight for them, and iCopyright relies on that very effect to scare people into paying up:

The use of excerpts from others' works without a license is permitted in certain limited circumstances under the "fair use" doctrine of U.S. Copyright Law and the "fair dealing" doctrine in Commonwealth nations. However, republication on the internet, without a license, of even a small portion of a work can constitute copyright infringement.

The distinction between "fair use" or "fair dealing" and infringement is not easily defined because each re-use has unique characteristics that must be analyzed. For example, there is no specific number of words or lines that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission. For additional information you may want to do an internet search of "fair use checklist" and "copyright myths."

Got that? "It's pretty hard to know if something's fair use, so you probably shouldn't bother." The page then offers a list of factors that often come up in fair use analyses, and suggests that if any of them apply to your use, it is "cause for serious reflection" on whether or not you are protected:

• Is the excerpt such that the reader may feel he/she already has the gist of the original work and no longer needs to read it?
• Is it your intent to earn money, whether through ads, subscription revenues, or otherwise?
• Is the work that was excerpted highly creative?
• Are you choosing not to exercise an affordable and accessible licensing mechanism?
• Are you publishing the excerpt widely, such as on the Web?
• Is the work of excerpted authors the main draw to your work as opposed to serving as a "footnote"?

Now, it's true that all of those are factors that can matter, but it's also true that you could answer 'yes' to virtually all of them and still be within the bounds of fair use/fair dealing. This is easily demonstrated by looking at the snippets within the National Post Full Pundit columns, which are a definitive "yes" on all but the first item. The issue of quote length is doubly amusing, since the Post recently lost a lawsuit it brought against an internet forum, because the Supreme Court declared that posting large snippets (multiple paragraphs) of articles can still be fair dealing, and that the established fair dealing exceptions for "news reporting" can include things like online forum discussions.

And that's where we see the double standard emerge. For a long time, newspapers really were the only source for news reporting, and thus over the years they got some special considerations in the laws and in the courts. Today everyone is a reporter, a photographer and a publisher, and these non-ink-stained wretches are quite rightly utilizing the same rights that "official" news sources have, for the same purposes. Newspapers like the National Post seem to have a hard time getting their head around that, so they launch lawsuits against forums and stick pointless bullying popups on their websites. It strikes me as a matter of arrogance more than anything else.

And, of course, it has to be asked: what is this going to accomplish? It's certainly not going to become a massive revenue stream for the paper, with bloggers (who are becoming well-versed in fair use and fair dealing themselves) forking over $150 every time they want to quote the National Post. There is another possibility, which is that it's a legal tactic: in future lawsuits, the Post could point to this popup tool as an "available and affordable license" that someone chose to forego, giving them a slight leg up in an anti-fair-dealing argument.

Either way, it's a hypocritical and even somewhat despicable move. The National Post is fighting against an important legal protection that is vital to newspapers themselves and to free speech as a whole. Here's hoping that the writers featured in Full Pundit columns, and anyone else quoted in the Post, calls up the newsroom and demands a $150 licensing fee.

Filed Under: canada, copyright, fair dealing, fair use, journalism, quotes
Companies: national post

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

from the fair-dealing dept

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.

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

Canadian Newspaper Reinvents The CueCat?

from the Do-Not-Want dept

The Canada-based National Post is apparently the first newspaper in North America to try adding 2D barcodes to its printed product. By doing so, its newspaper audience can whip out their mobile phones to see what kind of breaking updates have happened since the dead tree publication was stamped with ink. Readers just have to download an app to their phone (if it's not already a pre-loaded function), find the barcode on the front page of the paper, scan it with their barcode-capable phone, and voila! -- instant happiness. This is the best innovation since the CueCat! (/sarcasm)

Seriously, though, I'm not against experimenting with innovative products, but this combination doesn't make much sense to me. The newspaper audience that is tech-savvy enough to have a barcode-capable phone (and actually use it) does not seem like the appropriate target audience for a system that simply re-directs them to mobile content. Smartphone users are already reading mobile content, so this barcode system unnecessarily complicates what they're already doing. (In fact, it also drives these users away from the printed edition even more so by promoting the fact that more recent news is online.) And the newspaper readers who don't use smartphones are obviously not going to jump at the chance to figure out how to turn barcodes into newspaper articles. Clearly, if any audience is going to start scanning 2D barcodes, there must be a useful reason for doing so. Simply being the first newspaper to use barcode technology is nice, but there needs to be a compelling service behind the technology to succeed. I'm reminded of the colorful saying: "The early bird gets the worm, but the second mouse gets the cheese."

Filed Under: cuecat, news, scanner
Companies: national post