Substantial Clarification on what is a “Substantial Part of a Work” and other aspects of Fair Dealing

There are some very nice and straightforward clarifications in the recent Federal Court decision in Warman v. Fournier penned by Justice Rennie about:

• What constitutes a “substantial part” of a work. 
•  Why merely linking is not copyright infringement.·      

Richard Warman brought a lawsuit alleging infringement of a work by Jonathan Kay, a National Post journalist, and certain photographs in which Warman had acquired rights by way of an exclusive license and assignment, respectively. There was a third work, namely a speech by Warman. However, that claim was dismissed due to limitation period issues, which are not relevant to this posting.

Regarding the Kay article, the Judge found that the work “is a highly critical article about the applicant and it appears he sought the exclusive license to the Kay Work in order to prevent its further publication.”

No doubt there is a long and interesting story to this litigation and there are hints of this in the judgment. Mr. Warman was represented by counsel. The defendants are the people behind the Freedominion website.  They represented themselves here and won quite decisively. 

Here are the Judges exact words on the “substantial part” issue, which should clarify a lot of the “confused and confusing” and incorrect statements we have recently heard and read on this point:

No Reproduction of a Substantial Part

[23] The applicant submits that the respondents infringed his copyright in the Kay Work by reproducing excerpts from it. He argues that the reproduced excerpts constitute a substantial part of the Kay Work, contrary to sections 3 and 27 of the Copyright Act. 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:

U & R Tax Services Ltd v H & R Block Canada Inc, [1995] FCJ No 961, at para 35.

[24] Applying those factors to this case, I find that the respondents did not reproduce a substantial part of the Kay Work, and therefore there is no infringement.

[25] Quantitatively, the reproduction constitutes less than half of the work. The Kay Work itself consists of a headline and eleven paragraphs. The reproduction on Free Dominion 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.

[26] Most of the other factors are not directly relevant in this case given the circumstances in which the applicant obtained the copyright: he does not appear to “use” the subject matter of the copyright in the sense of reproducing or publishing the Kay Work. It is a highly critical article

about the applicant and it appears he sought the exclusive license to the Kay Work in order to prevent its further publication.

[27] It does not appear that the excerpts of the Kay Work were reproduced to “save time and effort”. Based on the context of the posting, the respondents reproduced portions of the Kay Work to preserve a record of the facts summarized in the article, so that members of Free Dominion could

continue to discuss those facts on the forum. Also, contrary to the applicant’s argument, the reproduction does include a summary or paraphrase of part of the work, specifically the second paragraph.

[28] Thus, considering the matter as a whole, I find as a fact that the applicant has not established that the excerpts of the Kay Work reproduced by the respondent constitute a “substantial part” of

the work, and there is therefore no infringement. (emphasis added)

This does not make new law. But it confirms very nicely that “substantial” needs to be taken in context and that there is no arbitrary rule that, for example, copying more than one sentence is copying a “substantial part”.  In fact, copying just one sentence will rarely amount to “any substantial part” of work, unless that work is a haiku. And there is a lot of authority that very short creations may not even be entitled to copyright protection – such as the titles of books, songs and movies. No doubt there will be a “tweet” test case about whether 140 characters can warrant copyright protection, and, if somehow so, what would a “substantial part” of that be.

Michael Geist praises the decision and says in his current Toronto Start column that:

While many assume that anything more than a sentence or two goes beyond insubstantial, the court’s ruling sends a signal that a more liberal approach is possible.  If the decision is upheld (an appeal seems likely), it will have significant implications for copying in a wide range of venues including collective licensing for educational institutions. (Emphasis added)

Actually, Justice Rennie does not break any new ground here. There has never been a rule that copying more than a sentence or two is infringing – despite occasional suggestions by some who urge otherwise. But he does clarify very neatly what most copyright experts have always known – that what is “substantial” cannot be defined by a bright quantitative line or formula. The determination of what is substantial is context specific. In the academic context, the copying of several sentences or even paragraphs or more may be necessary to make a point and to ensure that sufficient context is provided. Such copying still may not be "substantial" in the particular context and therefore would not even trigger any need for a "fair dealing" analysis.  Attribution is necessary, of course, as a matter of academic protocol and to avoid any allegation of plagiarism. But such "insubstantial" copying is not prevented by the Copyright Act, and requires neither permission nor payment. Unfortunately, there have been recent misstatements or misunderstandings relating to this point that have appeared in crucial contexts ranging from thesis approval procedure policy as stated by Library and Archives Canada to submissions by counsel in the K-12 case in the Supreme Court of Canada, where the issue arose right at the very outset of oral argument. 

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.

Michael is right that this point could impact on collective licensing for educational institutions, and we could see this as early as in the forthcoming K-12 decision in the Supreme Court. It’s sad to say that it appears that many educators, librarians and perhaps even some associations that represent them have simply not understood that:

• Copying several sentences or even paragraphs or more may not be a “substantial part” of a work, depending on the context;
• Only if the copying is “substantial” is there any need to worry about “fair dealing”; and,
• Above all, there is no need to get permission or to make any payment for copying anything that is not a “substantial part” of the work, or if it is,  that is “fair dealing”.·     

For example the administration of a certain university very recently posted that it pays Access Copyright for exercising its fair dealing rights. That reflects a frankly fundamental misunderstanding. Moreover, the unfortunate truth is that this is essentially what we do in Canada in many respects. We pay Access Copyright for exercising what are or ought to be users’ fair dealing rights. This need not be the case, if those responsible were to fully understand and take advantage of the empowerment of the Supreme Court of Canada’s Magna Carta 2004 decision in CCH v. LSUC. 

American lawyers shake their heads in disbelief. Here is what one US lawyer from a prominent Boston law firm recently said about Access Copyright:

But what is really striking from the U.S. perspective is that, for all that money, the license only allows copying of up to about 10-20% of each text, or one full chapter. Some critics argue that such a license is unnecessary, because educators are already permitted to copy approximately that amount without a license under existing Canadian law, or at least they will be upon the passage of Bill C-11, which is currently pending before Parliament. That legislation would expand Canada’s fair dealing exception to include education, parody and satire as non-infringing uses, aligning it more closely to fair use under U.S. copyright law.

As for hyperlinking, Warman had apparently sued because the defendants had linked to a photo that he had posted on his own website. Justice Rennie again provides succinct clarity:

[37] The evidence is clear that the Barrera Work was posted on the applicant’s personal website and thus the communication of the Barrera Work occurred by creating a hyperlink to the applicant’s own website. Thus, the applicant authorized communication of the Barrera Work by posting it on his website and therefore there is no infringement.

[38] Counsel for the applicant argued that the respondents cannot rely on the fact that the Barrera Work was posted on the applicant’s website because that would amount to “blaming the victim”. However, the applicant is only a victim of infringement if the respondents did something only he has the right to do without his authorization. As the respondents submit, the Barrera Work was within the applicant’s full control and if he did not wish it to be communicated by telecommunication, he could remove it from his website, as he eventually did.

The brief judgment refers several times to CCH v. LSUC and continues in the pursuit of a “large and liberal interpretation” of users’ rights, noting, for example, that:

The Kay Work is not currently published, which supports a finding of fair dealing because one of the purposes of copyright law is to promote wider dissemination of works (CCH, at para 58). Furthermore, the dealing is not competing with the applicant’s use of the Kay Work because he does not seek to publish it.

Justice Rennie quite usefully encapsulates several conclusions that Access Copyright and others would like to deny – such as that:

•  Copying a headline, three paragraphs and part of a fourth out of  an 11 paragraph newspaper article was not “substantial” in this context 
• Hyperlinking to something posted by a person entitled to post it isn’t copyright infringement. If this person does not want folks to hyperlink to something, it should not be posted. This conclusion should be seen as a vindication of the “implied right” concept that that linking, printing, displaying and other normal non-commercial activity associated with publicly available material on the internet is already legal and that there was no need to pass a special provision confirming such legality for the educational community.

This decision should be very useful at the Copyright Board in AC’s quest to get $24 per year for each full time provincial employee, even if that employee’s job is driving a snow plow and summer road maintenance, or photocopying endless internal planning and personnel reports.

As for the current post-secondary hearing, with the AUCC apparently having abandoned ship while leaving all of its members on board and ACCC’s future role unclear, it is difficult to know how there can be any adequately fought fight battle the Board. However, if there is, this decision should further expose the lack of value in AC’s proposed tariff and the lack of legitimacy to AC’s claim of entitlement to be recognition of hyperlinking as any direct or indirect basis for compensation.

Michael suggests that Warman may appeal this decision. This would not be surprising, given his prolific activity in the courts and the Canadian Human Rights Tribunal. However, if he does, I would predict two things:

• There may be applications to intervene – both supporting him and opposing him. 
• He will have a steep uphill battle because Justice Rennie’s reasons are clear, correct and, indeed, clearly correct. Moreover, to the extent Justice Rennie's conclusions are based upon fact finding in contrast to legal reasoning, they are even harder to overturn on appeal.

Moreover, the forthcoming decisions from the Supreme Court of Canada on fair dealing - which could be rendered any time now – may have a significant impact on the issues of “substantial copying” and “fair dealing”.

H