Wednesday 4 July 2012

Blogging, posting, linking… infringing? Not in Canada

Current UK case law tells us that posting excerpts from an article published online infringes copyright in that article. Headlines are also protected, as they are deemed to form a substantial part of the article, and could in some cases be works in their own right  (NLA v Meltwater, reported here and here). The Court of Appeal has confirmed that the exception permitting fair dealing for the purpose of reporting current events does not apply to this type of copying. The question of whether the temporary copies defence applies is being appealed to the Supreme Court (see here).

Further, in a summary decision the UK courts have held that merely linking to a website that has published unlawful content could incur liability (McGrath v Dawkins).
 © owenwbrown
These issues form part of the current copyright consultation (a summary of the response is available here), but for the time being UK case law points firmly in favour of online copyright owners. The Canadian Federal Court has however recently decided a case which means much more freedom for bloggers and users of social media sites in Canada.

The case was brought by Free Dominion, "The Voice of Principled Conservatism". Free Dominion is a Canadian-based political news website on which users can post articles or link to online content for the purpose of political debate.

The Federal Court's decision relates to two works in which copyright was alleged to have been infringed. The first work was an 11-paragraph article published by the Toronto-based daily newspaper, the National Post. The article was initially reproduced in full on Free Dominion however it was reduced to a three and a half paragraph excerpt (including the headline) further to a complaint from the National Post. The second work in which copyright infringement was alleged was a photograph published on a photographer's website. The photograph was not reproduced on Free Dominion however a link to the photograph was posted.

© Rohan Kar

The Federal Court of Canada dismissed both claims. It held that three and a half paragraphs was not a "substantial part" of an article and that Free Dominion had therefore not infringed the National Post's copyright. It is interesting to note that whilst in Canada three and a half paragraphs, including a headline, is not deemed to be a "substantial part", in the UK an extract consisting of  265 characters can be a substantial part of an article for the purpose of copyright infringement.

Further, the Federal Court found that even if the copying was substantial, the article had been used for the purpose of news reporting and was therefore fair dealing. As noted above this defence is not available in this context in the UK, however in Canada the court held that fair dealing should be given a "large and liberal" interpretation therefore news reporting could include posting extracts from articles online.

As regards the provision of a link to a photograph, the Federal Court held that the link was not copyright infringement. The court found that the photographer had authorised the communication of the work by posting the photo online, and noted that the photographer could remove the photo if he wanted to prevent people from linking to it.

This blogger is not aware of the UK courts having directly considered this question, however as noted above, the High Court for England and Wales has summarily found that it is possible to be liable for linking to defamatory material. We have yet to hear the outcome of this case, in contrast however last year the Supreme Court of Canada ruled against attributing a defamation claim to online links.

It seems that the English and Canadian courts are taking very different approaches to online liability, however if the Free Dominion case is appealed (which seems likely) the lay of the land may yet change again. In the meantime this case provides reassurance for bloggers and users of social media sites in Canada that they may include short extracts from published material and may link to other sites without fear of reprisal.


Andy J said...

I think it is fair to say that Mrs Justice Proudman's finding specifically about headlines in Meltwater was heavily influenced by Infopaq, where 11 consecutive words were found to amount to substantial copying - a ludicrously low threshold in my view, and one supported by the criticism of others such as Professor Bently of the Court of Appeal's decison which upheld Proudman J's finding on this aspect.
The elephant in the room is why Google can scrape websites generally with impunity, but Meltwater et al cannot do the same in certain specific markets.
All of this sits uncomfortably with the government's (aka the IPO's) position on orphan work licensing and greater freedom for data mining, both of which initiatives ostensibly seek to give the public greater access to copyright works.

john walker said...

'why Google can scrape websites generally with impunity'

google is very big