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

Blogger Sued, In Part, For Linking To Material Claimed To Be Defamatory

from the link-it-up dept

We've pointed in the past to some rather ridiculous situations in Canada concerning libel law. One key case involved a guy named Wayne Crookes, who not only sued major internet sites like Google, Yahoo, Wikipedia and MySpace for hosting content he believed to be defamatory towards himself, but he also sued Jon Newton of the site P2Pnet.net for merely linking to the content Crookes believed to be defamatory. A court in Canada eventually ruled that merely linking to potentially defamatory material is not defamation, and an appeals court agreed. Last I heard, the case had moved up to the Canadian Supreme Court. That case is still ongoing, but it looks like there may be a similar case brewing as well.

Reader JC points us to a short blogpost about another Canadian, named Richard Warman (interestingly, both Warman and Crookes have ties to the Canadian Green Party, though, I'm going to say that's likely a coincidence), who apparently is suing some bloggers for (in part) linking to material he finds defamatory. Unfortunately, in all the sites talking about this, no one seems to be willing to state the full story of the lawsuit, or show the full filing. Instead, they just show parts of the filing. But, at least in that part, it does appear that one of the complaints is that the blog in question linked to a site that Warman believed to be defamatory. It's unclear what else is involved in the lawsuit (and if anyone has the details, please pass them along in the comments). However, just the snippet provided is troubling enough.

Even if the content in question was totally defamatory, it certainly raises some pretty serious questions about whether merely linking to content itself can or should be seen as defamatory as well. As noted in the Newton/Crookes case, so far, Canadian courts have been rejecting such claims, and hopefully that holds up with the Supreme Court ruling. But in the meantime, it certainly sounds like others are still making similar claims, which certainly feel like efforts to stifle freedom of expression.

Filed Under: canada, free speech, libel, linking, richard warman