Tuesday, March 12, 2013

Warman v. Fournier On Appeal: National Post Says That 11 Words Can Be "substantial"

Reader’s will recall the Warman v. Fournier case last year, in  which the Fourniers successfully represented themselves against Richard Warman in a copyright case that dealt with linking, fair dealing and what constitutes a “substantial part”.

The National Post has now filed its appeal memorandum. I won’t comment on it in any detail except to note a few brief points.

The National Post claims that, although it was named as a plaintiff in the proceeding (as required by s. 36 of the Copyright Act), it was unaware of the case until the decision was rendered:
15. While the National Post was named as an applicant, it had no knowledge that the proceeding had been commenced, was never served with any of the documents in the proceeding (including the originating process), and had no knowledge of the application until after the judgment was issued. After learning of the judgment, the National Post instructed counsel to commence this appeal.

Assuming that this is correct, this raises some very interesting questions.

The other point worth mentioning at this time is that the National Post is arguing the European Infopaq decision is applicable, which supposedly holds that even the quoting of 11 words of a newspaper article can be infringing. As is well known, there is a massive effort underway in Europe to force Google to pay newspapers for quoting snippets on various Google News websites. European law on this point is substantially different than Canadian and American law. 

Indeed, it is simply wrong to suggest categorically, as one well-known lawyer for educators recently did to the Supreme Court of Canada no less, that anything more than one sentence is "substantial". As I indicated several months ago, David Vaver explains this issue very well in his discussion of “Taking a Particle Does Not Infringe” at p. 184-188 of his 2011 book.  Indeed, Vaver states that even where the writing is of the quality of Dickens or Shakespeare, it is “simply nonsense” to suggest that “the taking of even a single sentence” may infringe copyright.

If the Federal Court of Appeal is somehow persuaded that quoting 11 words of news can be substantial, this could have interesting consequences for Google News in Canada. Here’s an example of a snippet from this morning, which is 40 words long:
A Canadian judge rejected on Tuesday a request to ban the press and public from the pre-trial hearing of a Montreal man accused of murdering and dismembering a Chinese student, eating parts of the corpse and posting an online ...

The National Post also mounts a serious attack on the Federal Court’s findings on fair dealing.

No doubt, Access Copyright is watching this case closely and relishing the prospects of applying for a “Google Tax”, as newspapers are seeking in Germany.

Access Copyright may also be hoping that outcome of this case could help it to recoup some of the considerable setbacks it has suffered in the Supreme Court of Canada and in Parliament lately.

The Fourniers are continuing to represent themselves. They now, however, are being opposed by counsel very experienced in both copyright law and appellate advocacy.

This is a classic case of where intervention is called for – not to support one side or the other but to assist the Court. There are enormous public interest implications for education and news reporting, and copyright generally in Canada. Free speech advocates will also be concerned. 

Given the fact that the Respondents are self-represented, there is also a serious risk that, without adequate intervention, not all the applicable arguments and case law will come to the attention of the Court.


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