Canadian fed court: linking isn't copyright infringement, neither is excerpting an article

Michael Geist sez,

The Federal Court of Canada has issued an important decision involving copyright and posting content online. The case involves a lawsuit launched by Richard Warman and the National Post against Mark and Constance Fournier, who run the FreeDominion website. Warman and the National Post sued the site over the appearance of two articles and an inline link to photograph that appeared on the forum. The court dismissed all three claims.

While the first claim (Warman's article) was dismissed on the basis that it took too long to file the lawsuit, the legal analysis on the National Post claim involving an article by Jonathan Kay assesses the copyright implications of posting several paragraphs from an article online. In this case, the article was 11 paragraphs long. The reproduction on the Free Dominion site included the headline, three complete paragraphs and part of a fourth. The court ruled that this amount of copying did not constitute a "substantial part" of the work and therefore there was no infringement. The court added that in the alternative, the reproduction of the work was covered by fair dealing, concluding that a large and liberal interpretation of news reporting would include posts to the discussion forum. The decision then includes an analysis of the six factor test and concludes that the use was fair.

The third claim involved a link to a photograph posted on the photographer's site. The court had no trouble concluding that the link was not copyright infringement, rightly noting that the photographer authorized the communication of the work by posting it on his website. This finding should put an end to claims that linking to copyright materials somehow raises potential legal risks. The Supreme Court of Canada has already ruled against attributing defamation to such links and now the Federal Court has concluded that links cannot be said to constitute unauthorized copying.

Cdn Fed Court Says No Copyright Infringement For Linking, Posting Several Paragraphs from Article

• [Ipo]

  The decision then includes an analysis of the six factor test and concludes that the use was fair.

  It’s a four factor test. 

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;  and
  4.  the effect of the use upon the potential market for, or value of the copyrighted work.  

  Or what else?

  • [Paul Renault]

    Methinks you didn’t read the decision.  Quoting from it:

    [32]
    The SCC [Supreme Court of Canada] set out several factors that may be relevant in determining whether dealing is fair in CCH, at paragraph 53:
    (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work.  Although these considerations will not all arise in every case of fair dealing, this list of factors provides a useful analytical framework to govern determinations of fairness in future cases.

    Yep, I count six factors.

    • [Ipo]

       The PDF?  You think correct. 

  • [elix]

    PaulR has covered what the six factors are, but I’d just like to point out your error. You’re quoting the four factor test of Fair Use under US copyright law. No such element exists in Canadian law.

    Instead, Canada has a similar, but not identical, section of rights carved out under the umbrella of Fair Dealing. Canadian copyright law suffers from the curse of being similar enough to US copyright law that a lot of people assume it’s the same, but the actual details and mechanics do vary in a number of key places. I’m no law expert, so I can’t speak on it with great authority myself, but there are some fairly big differences.

    But you were on the right track, at least. :D

    • [Paul Renault]

      That was my suspicion, too, and I forgot to mention it.  I’ve edited my reply to underscore it.

      Thanks.

    • [Ipo]

       And the terms “fair use” and “fair dealing” can be used interchangeably. 
      That’s where I got on the wrong railroad switch. 

• [Paul Gillett]

  Hey, what’s the deal? You didn’t post a link to Geist’s original article?

• [stovedoor]

  I was hoping ‘canadian-fed court’ was along the same lines as ‘grain-fed beef’.  Alas, the truth was not so interesting.