Warman and National Post Drop Appeals - Good News for Canadian Copyright Law

Just in time for  for Valentine's Day, though they probably didn't intend it that way, the National Post and Richard Warman have discontinued their appeals from the decision from Justice Rennie. These were to have been heard on February 19, 2014 here in Ottawa. This is a very pleasant surprise and lets Justice Rennie's decision stand. It will be interesting to see what happens with costs, since this went down to the wire. Such a last minute discontinuance of an appeal is very unusual. Here's what was at issue in the appeal:

• 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?

Here's what I've said about this in the past, which has resulted in some very capable interveners and counsel weighing in on this. The outcome is anticlimactic but very satisfactory in the sense that a good trial decision now stands as good law.

Here's the Notices of Discontinuance.

HPK

PS - here are the substantive memoranda filed by the parties and the interveners:

• Here's Warman's memorandum
• Here's the National Post's memorandum
• Here's the Fourniers' memorandum
• Here's CIPPIC's memorandum
• Here's CCIA's memorandum
• Here's the National Post's response to the interveners' memos

Canadian Copyright and Related Issues - Suspense at Summer’s End

Here are some developments we can expect soon in Canadian copyright law:

• York University will likely very soon file a statement of defence in the lawsuit by Access Copyright. This has already taken months longer than usual. York’s position and strategy will inevitably attract much scrutiny, since an adverse outcome for York could profoundly and negatively affect the entire Canadian educational community at all levels.
• The Federal Court could rule at any time in the Voltage Pictures effort to compel Teksavvy to hand over the identities of thousands of its customers. Teksavvy, it will be recalled, has spent a lot of money not to take a position on this issue and to buy time for a law school clinic to get involved as an intervener. Teksavvy’s counsel spoke briefly at the end of the hearing, which took place on June 25, 2013 but Teksavvy had not previously taken any position.
• The Copyright Board has just advised that “the Tariff of Levies to Be Collected by CPCC in 2012, 2013 and 2014 on the Sale, in Canada, of Blank Audio Recording Media is scheduled to be published in the Canada Gazette this Saturday, August 31, 2013. The links to the certified Tariffs, as well as the decision in respect of each Tariffs will be available on our web site under the heading “What’s New” on Friday, by the end of the business day.” The Board will also, at some point, rule on whether it intends to proceed with a hearing on whether there can be a levy on microSDs for the period of January 1 to November 6, 2012. The Government published a regulation on November 7, 2012 that stated that “Memory cards in microSD form factor, including microSD, microSDHC and microSDXC cards, are excluded from the definition “audio recording medium” in section 79 of the Copyright Act.”
• The Supreme Court of Canada could at any time now deliver its judgment in the case involving Cinar and Claude Robinson, et al which will presumably focus on the question of what is a “substantial part”.

In the somewhat longer term, we know that we will see:

• The hearing in the Federal Court of Appeal on the Warman v. Fournier case, which involves fair dealing, substantial copying, limitation periods, etc. and in which there are now some prominent interveners.
• A ruling by the Copyright Board in Access Copyright’s quest to get a tariff on copying by provincial civil service employees.
• A hearing next May by the SCC on the interplay between the Status of the Artist Act and the Copyright Act and whether the National Gallery must negotiate exhibition rights, etc. with respect to pre-existing art works under the aegis of the former act rather than the latter, under which the artists have apparently never even tried to get a tariff at the Board.
• A hearing by the Federal Court of Appeal on whether Catherine Leuthold gets the $22 million or so that she believes she is owed by CBC for the few apparently inadvertently unlicensed re-uses of a few of her still photos from 9/11 that the Federal Court said was worth less than $20,000 and what the cost consequences may be to her if she does not succeed.
• A hearing beginning February 11, 2014 by the Copyright Board of the Access Copyright proposed Post-Secondary Tariff, in which the AUCC has spent almost $2 million that we know about and withdrawn its objections, leaving its members without any representation in a hearing in which Access Copyright is seeking what it considers to be a “mandatory” tariff.
• A hearing by the Copyright Board beginning April 29, 2014 into Access Copyright’s proposed tariff for K-12 schools, which is taking place notwithstanding that the K-12 school boards have stopped paying anything to AC under the previous tariff.

Other issues to watch in the medium term will include:

• How will the educational community react to York’s defence of the Access Copyright litigation?
• Will Access Copyright sue one or more K-12 school boards?
• Whether the Government will look at growing calls to deal with certain issues involving the Copyright Board, some of which could be dealt with by regulation, rather than legislation.
• Whether Canada gives into expected American and/or European pressure to extend the copyright term to life + 70 years, etc. and other potentially controversial US and EU IP demands in the TPP and/or CETA negotiations.
• Whether the far reaching Bill C-56 dealing with anti-counterfeiting – but which goes far beyond what might be required even by ACTA – is reintroduced after the expected prorogation, whether changes will be made before it is re-introduced, and what will happen to it if it proceeds through the committee process.

Most of the above issues have been discussed before on this blog. Watch here for further developments.

HPK

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.

HPK

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

Warman & National Post v. Fournier - CIPPIC Seeks Leave to Intervene

CIPPIC is now seeking leave to intervene in this Federal Court of 
Appeal case. CIPPIC's leave to intervene motion record is available here. 

It will be interesting to see if there will be other attempts to intervene. 

As I've suggeseted earlier, this is a case that calls out for intervention.

HPK

Update on Memoranda in Warman and National Post v. Fournier & copyright in headlines, limitation periods, etc.

On March 14, 2013 I wrote about the appeal in Warman & National Post v. Fournier, and in particular about the National Post’s effort to establish that it has an enforceable copyright interest in the headline or title “"Jonathan Kay on Richard Warman and Canada's Phony-Racism Industry"”.

By way of update, here are all three memoranda of law on behalf of:

Richard Warman,

National Post, and

Mark and Connie Fournier, who are self-representing.

Warman’s memorandum is confined to the single but important issue of whether the three year limitation period in the Copyright Act applies with respect to “continuing or ongoing infringement”.

The National Post ((which, for whatever reasons, took no part in the proceedings below), is dealing with the substantive copyright issues.

Because there are wide-ranging and fundamental copyright issues of a procedural and substantive nature at stake in this case, applications to intervene would not be surprising. I will post them as they happen.

HPK

Warman v Fournier: Copyright in Titles and Headlines of Newspaper Articles?

Notwithstanding that I said I wouldn’t say much about the Warman v. Fournier appeal case, another point needs to be made in order to alert interested parties to the possible need to intervene.

The National Post is arguing that it is entitled to enforce copyright in the title (headline) of a newspaper article entitled: "Jonathan Kay on Richard Warman and Canada's Phony-Racism Industry"

The National Post says in its memorandum:

62. Moreover, the headline of the article was also a substantial part of the work. The application judge erred by failing to consider the effect of reproducing the headline of the article even though the Copyright Act defines a "work" as including the title of that work "when such title is original and distinctive."

63. The headline of the article was both original and distinctive. In Canada, the threshold for originality in a work is "rather low." In order for a work (or the title of a work) to be "original", all that is required is an exercise of skill and judgment by the author, which involves intellectual effort. Such exercise must not be so trivial that it could be characterized as a purely mechanical exercise. However, the statutory requirement of originality does not imply inventive originality. It is enough that the work is the production of something in a new form as a result of the skill, labour and judgment of the author.

64. Something that is "distinctive" is "serving to differentiate or distinguish; peculiar to one person or thing as distinct from others, characteristic; having well-marked properties; easily recognized." Something that is "distinct" is "distinguished as not being the same; not identical; separate; different in nature or quality."49 The title of the Kay Work possesses these qualities, distinguishing the Kay Work from other newspaper articles, and in so doing is distinctive.

65. The headline, "Jonathan Kay on Richard Warman and Canada's Phony-Racism Industry", clearly demonstrates creativity, originality and distinctiveness, including the distinctive and original concept of a "phony-racism industry."

 (footnotes omitted)

This position, if adopted by the Federal Court of Appeal, would have startling and potentially absurd consequences. The automated extraction of titles (i.e. headlines) is the very basis not only of Google News and other news aggregators but of Google, Bing and other search engines. Every scholarly article is full of cited titles.

Not to mention Twitter, in which a very large percentage of tweets are nothing more than automated quotations of newspaper article headlines, blog titles, etc.  with a shortened link. e.g.

Warman v Fournier: Copyright in Titles and Headlines of Newspaper Articles? bit.ly/XMt7a8
— Howard Knopf (@howardknopf) March 14, 2013

The assertion also flies in the face of one of the most famous of old chestnut copyright cases from the Privy Council. In 1939, the Privy Council ruled in a landmark case involving the then famous song “The Man Who Broke the Bank at Monte Carlo” and the eponymous movie that: 

“As a rule, a title does not involve literary composition, and is not sufficiently substantial to justify a claim to protection. The statement does not mean that in particular cases a title may not be on so extensive a sale and so important a character as to be a proper subject of protection against being copied”.

But not in that case, and that was a very memorable and reasonably lengthy title as far as titles go. See Francis, Day & Hunter v. Twentieth Century Fox [1939] 4 All E.R. 192 at 197. This authority is not mentioned in the National Post’s memorandum.

In other words, it will be very, very rare that a title is sufficiently substantial and original to warrant copyright protection. Frankly, IMHO, this particular instance does not leap to the forefront of such cases.

However, someone needs to make points such as this to the Fedeal Court of  Appeal.  Otherwise, such common place applications as Google News, Twitter, and such common practices as citing articles by names may be imperilled.

The Fourniers, who are representing themselves, have done well to date but they are not expert litigators or copyright lawyers. 

Interveners, start your engines.

HPK

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