Meera Nair

Posts Tagged ‘linking’


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.

last week

In Posts on October 23, 2011 at 5:09 pm

Debate, a ruling, and two very good speakers made for an interesting week…

Tuesday, October 18, 2011

Debate has begun in the House of Commons with respect to Bill C11, the Copyright Modernization Act. The opposition parties voiced their concerns about the measures to protect digital locks and the government insisted such measures were necessary because: (a) copyright holders requested them; and (b) “digital locks are important for encouraging innovation” (see the opening remarks of Hon. Christian Paradis, Minister of Industry). Concurrent with his regular posts, Michael Geist is running a series titled The Daily Digital Locks Dissenter highlighting the submissions from other stakeholders who question the wisdom of absolute protection for digital locks.

In terms of the actual debate, it is disappointing that the government did not emphasize that the inclusion of education to fair dealing does not sanction rampant copying of copyrighted works in schools, as persistent misinformation has given currency. The ministers involved could have mitigated the situation by taking a clear stance at the outset. Instead, the field was left wide open for damaging allegations, such as these remarks from opposition MP Mr. Pierre Dionne Labelle:

What about lost royalties in Quebec because of the broadening of the concept of fair dealing? In fact, what is fair dealing? The law does not specify what is meant by fair dealing. This will result in the loss of $11 million annually for creators and copyright owners. Every year schools, CEGEPs and universities make 175 million copies of excerpts from protected works.  Let us remember that fair dealing is a loose concept that will put an end to the right to grant or deny authorization to use a work and the right to receive remuneration for the use of a work, thus affecting the rights of 23,000 authors and 1,000 publishers in Quebec.

What is so disturbing is the avowed determination that copyright is already a grant of absolute control and fair dealing an impertinent upstart that interferes with those rights. Mr. Mike Lake, Parliamentary Secretary for the Minister of Industry, attempted to clarify the inclusion of education but did not clearly stipulate that copyright has always functioned as a set of limited rights.

Wednesday, October 19, 2011

The Supreme Court handed down a landmark ruling: 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. The ruling in Crookes v. Newton was set upon the issue of defamation but has broader implications. John Barber, writing for the Globe and Mail, identifies the two dimensions of this case. It can be seen as a continued thrust to protect freedom of expression, or, a practical response to the modus operandi of the Internet.

Interestingly, the ruling contains three opinions in total.  The majority opinion, written by Justice Abella stipulates:

Hyperlinks thus share the same relationship with the content to which they refer as do references.  Both communicate that something exists, but do not, by themselves, communicate its content.  And they both require some act on the part of a third party before he or she gains access to the content.  The fact that access to that content is far easier with hyperlinks than with footnotes does not change the reality that a hyperlink, by itself, is content neutral — it expresses no opinion, nor does it have any control over, the content to which it refers (para. 30).

Abella emphasizes the role of the Charter of Rights and Freedoms and the functioning of our communications’ environment:

This interpretation of the publication rule better accords with our Court’s recent jurisprudence on defamation law.  This Court has recognized that what is at stake in an action for defamation is not only an individual’s interest in protecting his or her reputation, but also the public’s interest in protecting freedom of expression (para 31) … Interpreting the publication rule to exclude mere references not only accords with a more sophisticated appreciation of Charter values, but also with the dramatic transformation in the technology of communications (para 33).

But, as should be expected, the range of that environment invites further thought. There were two additional opinions. Chief Justice McLachlin and Justice Fish write:

While we agree in large part with the reasons of Abella J., we respectfully propose a different formulation of the test for when a hyperlink reference in a text constitutes publication of defamatory matter to which it links (para. 46)…In our view, the combined text and hyperlink may amount to publication of defamatory material in the hyperlink in some circumstances.  Publication of a defamatory statement via a hyperlink should be found if the text indicates adoption or endorsement of the content of the hyperlinked text.  If the text communicates agreement with the content linked to, then the hyperlinker should be liable for the defamatory content (para. 48).

And, the final opinion came from Justice Deschamps. He too agrees with the majority opinion that a hyperlink in and of itself is not defamatory but presents further information:

Proof of publication is necessary in order to establish liability for defamation. “Publication” has an established meaning in the law of defamation. It refers to the communication of defamatory information in such a way that it is “made known to a third party”…. Thus, publication has two components: (1) an act that makes the defamatory information available to a third party in a comprehensible form, and (2) the receipt of the information by a third party in such a way that it is understood (para.55).

To resolve the traditional meaning of publication against the practice of hyperlinking, Justice Deschamps proposes:

A more nuanced approach to revising the publication rule, and one that can be applied effectively to new media, would be for the Court to hold that in Canadian law, a reference to defamatory content can satisfy the requirements of the first component of publication if it makes the defamatory information readily available to a third party in a comprehensible form. In addition, the Court should make it clear that not every act, but only deliberate acts, can lead to liability for defamation (para 57).

Thursday, October 20, 2011

Professor Adrian Johns spoke at the University of British Columbia on “The Intellectual Property Defense Industry and the Crisis of Information.” (I could not attend but am enjoying the audio coverage available here.) Prof. Johns posits that intellectual property is a consequence of how the actions of the IP Defense Industry have played out over time. He says, “… going back centuries, the IP police or their predecessors have pioneered practices, that at that point were at best alegal [sic] , or maybe even illegal, but over the years the law has expanded to embrace them.”

Adrian Johns is a professor in the Department of History at the University of Chicago and author of Piracy – the Intellectual Property Wars from Gutenberg to Gates.

Friday, October 21, 2011.

Against the turmoil of contemporary controversy it was a relief to take refuge in a different century and listen to Professor Geoff Turnovksy speak at Simon Fraser University. His talk “Worldly Writers and Worldly Readers in 17th-Century France” was part of the 2011-2012  Print Culture Series. Prof. Turnovsky gave an intriguing look at the relationships embedded to authorship in  the era of the French salon.  He spoke of the authorial modesty of the day and the worldly society made up of a community of readers. His 2009 work, The Literary Market–Authorship and Modernity in the Ancient Regime looks very interesting but I will have to wait (the SFU library copy is already out.)

Geoff Turnovsky is an Associate Professor in the Department of French Studies for the University of Washington.