Meera Nair

substantial

In Uncategorized on June 26, 2012 at 9:21 am

A Federal Court decision has brought further clarity to the intersection of copyright and communication, as those two elements collide in our digital age. Michael Geist explains that the issue involved reproduction by a third-party website of some portions of copyrighted work and reproduction of a link to copyrighted material posted on the copyright holder’s own website. Justice Rennie confirmed what can only be described as logical; if material is posted by the copyright holder, then the holder has authorized use of the work. This decision very nicely buttresses a Supreme Court decision from October 2011, Crookes v. Newton, where the Justices deemed that linking to content on the Internet is not the same as publication of that material and thus poses no liability to the site who creates the link.

[A thought: The only way linking might become liability is if a licensee chooses to accept such terms from would-be licensors.]

More intriguing is the discussion of what substantial means. Any claim of copyright infringement must begin by establishing that a substantial portion of the work was reproduced (as per Section 3.1 of the Copyright Act.) But, just as in the case of fair dealing, substantial is more of a concept than a specific measure. Justice Rennie’s decision* is a helpful illustration of applying the concept:

Whether a substantial part of a work has been reproduced is a question of fact and involves a qualitative rather than quantitative analysis. The relevant factors to be considered include: (a) the quality and quantity of the material taken; (b) the extent to which the respondent’s use adversely affects the applicant’s activities and diminishes the value of the applicant’s copyright; (c) whether the material taken is the proper subject-matter of a copyright; (d) whether the respondent intentionally appropriated the applicant’s work to save time and effort; and (e) whether the material taken is used in the same or a similar fashion as the applicant’s (para 23).

Justice Rennie noted that some of these factors did not apply in this case. The key points were:

Quantitatively, the reproduction constitutes less than half of the work. The [work] itself consists of a headline and eleven paragraphs. The reproduction …  included the headline, three complete paragraphs and part of a fourth. Qualitatively, the portions reproduced are the opening “hook” of the article, and the summary of the facts on which the article was based. Most of the commentary and original thought expressed by the author is not reproduced (para 25).

Then Justice Rennie determined that while the work reproduced did not constitute a substantial part of the original work, “even if the reproduced portions of [the work] amount to a substantial part, I find that the respondents’ reproduction constitutes fair dealing for the purposes of news reporting (para.29)”

Justice Rennie did not make that decision lightly; he referred to the Supreme Court’s guidance in CCH Canadian that research should be given a “large and liberal interpretation” and followed suit with a large and liberal interpretation of news reporting. Applying the multi-facetted inquiry set by the Supreme Court (paras 29-34), Justice Rennie stated: “on balance, the reproduction of [the work] falls within the fair dealing exception for the purposes of news reporting (para 34).”

Perhaps the real story is why this suit took place at all. Justice Rennie writes: “The applicant was not seeking to exercise his copyright, but rather was using the copyright regime as a means to harass the respondents because of their political views (para. 41).”

Setting apart discussion of content and political views, it is comforting that our courts are keeping copyright to a principled stance thus facilitating the evolution of practices enabled by digital technology and world-wide networks.

* The decision from the website of the Federal Court of Canada is unavailable at this time; I will link to it as soon as possible.

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