Tuesday, May 28, 2013

Warman & National Post v. Fournier – the Interveners Have Started Their Engines - updated

In the Warman v. Fournier copyright litigation, we saw as of March 14, 2013  that that such important copyright questions as:
·         what is substantial,
·         how does fair dealing apply in the context of news reporting, blogs, and critical comment,
·          when the limitation period begins to run for material posted online, and
·         whether there can be copyright in a headline
have been left  by fate to be decided in a case based upon rather strange facts, controversial parties and on what has been up until now a very lopsided playing field.  Leaving aside Richard Warman, the main plaintiff who is no stranger to the instigation of controversial litigation, we saw Mr. and Mrs. Fournier (who for their part are also not your typical non-represented litigants) representing themselves against Warman, who had legal representation, and the National Post, which for whatever incomprehensible and unexplained reason was a necessary party below but was supposedly not even aware of or involved in the earlier proceedings until after the final judgement was rendered.

Nonetheless, the National Post now appears in full regalia on the appeal with prominent copyright counsel eager to establish, inter alia, that it has enforceable copyright in short headlines.  Whether or not one has any sympathy for either Warman or the Fournier’s or both or neither, there is a lot at stake here from a public interest standpoint. It was quite clear on March 14, 2013 when I posted my blog that the National Post with its very experienced copyright counsel would more than adequately represent big corporate copyright. But the public interest representation was quite another matter.

So, I said on March 14, 2013, “Interveners, start your engines.”  And, whether by causation or coincidence, I am pleased to note that is precisely what has now happened.

First, the now ubiquitous CIPPIC sought leave to intervene. CIPPIC is a law school clinic, for which I acted as lead counsel on its first and probably most influential case to date, which involved an intervention in the first attempt at mass copyright litigation in Canada – namely the BMG v. Does case in 2004-2005. CIPPIC played a key role both behind the scenes and on the record in facilitating a positive public interest result in that case. The National Post wants to limit CIPPIC’s scope of intervention. CIPPIC has responded in this way.

Now enter the U.S. based Computer and Communications Industry Association (“CCIA”) which counts, among its membership, Google and Microsoft. It has filed an application for leave to intervene in the Warman case that raises some useful points that are potentially helpful to the public interest point of view. The National Post has opposed this application to intervene in strenuous terms, or alternatively to allow it with limits. Interestingly, one of the grounds for objection to the intervention by the National Post is that CCIA has raised what the National Post considers to be the new, irrelevant and unnecessary issue of the application of a certain provision in the Berne Convention specifically regarding quoatations from newspaper articles.  Ironically, the same counsel now acting for the National Post, when he was acting for CMRRA as an intervener in the Supreme Court of Canada,  strenuously urged the Court in the K-12 Province of Alberta case to consider the very general “three-step” test as set forth in the Berne Convention, which would have been a new issue at the Supreme Court level. Prof. Ariel Katz and I argued that the three-step test as found in international law was an irrelevant “red herring” in the that case – and the Supreme Court apparently agreed with us because there was not a word about it in the judgment.

There may still be some important issues that are not yet be on the table or which could use further focus. Although it is getting late in the day, it is possible that other would-be interveners on both sides may emerge, given that this is now clearly a high stakes case and the playing field has been largely levelled. This could be interesting because there are probably some interests watching this case that don’t really want to see a level playing field and may have hoped that this appeal could have served to at least partially undo what they hubristically and mistakenly regard as the  misguided rulings of the Supreme Court of Canada and the regrettable results, from their point of view, of parliamentary democracy in the form of Bill C-11.

At any rate, at least two very credible potential interveners have indeed started their engines. The countdown is progressing.

There will likely be some to and fro on these intervention applications, but it would frankly be surprising if they were not allowed in these circumstances.

I will keep readers posted on important developments.


PS - here's CCIA's reply to National Post's attempt to deny its leave to intervene application.

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