A Closer Look at Warman v Fournier: Good news for online journalists

In my previous posting which focused on linking and its implications for copyright infringement, I mentioned the recent Federal Court of Canada decision in Warman and National Post v Fornier (2012 FC 803). 

The case is important for some other reasons as well, and the Hon. Justice Rennie’s June 21st decision should be read by anyone interested in blogging, tweeting or other aspects of online journalism. The controversy involved three separate claims for infringement of copyrighted works. The first two claims involved articles, the third a photograph. Applicants Richard Warman and the National Post claim that the respondents, Mark and Constance Fournier, who operate the website www.freedominion.com, infringed their copyright in the respective works.

The first claim involved a 2005 speech by Warman entitled, “Maximum Disruption: Stopping Neo-Nazis By (Almost) Any Means Necessary”. The text of the speech had previously been entered as an Exhibit into a Canadian Human Rights Tribunal case and the respondents posted a scanned copy on www.freedominion.com without Warman’s consent, who then demanded it be taken down. The court found that Warman was the author and owner of the work and that the respondents authorized its communication by uploading a copy of it onto their server, thereby establishing the elements for a prima facie case of copyright infringement. But the court held that the claim was time-barred by the limitations of section 41(1) and it was therefore unnecessary to delve further into potential defenses.

The second claim was about a National Post article written by Jonathan Kay entitled “Jonathan Kay on Richard Warman and Canada’s Phony-Racism Industry”. The respondents posted a copy of the article on www.freedominion.com, but took it down and replaced it with excerpts after receiving demand to remove it from the website. Warman alleged that the remaining excerpts were still substantial reproductions of the work within the meaning of section 3(1) of the Act. In a very significant passage analyzing the meaning of the substantiality requirement in section 3, the court found that the requisite substantiality was lacking and that there was no infringement. In determining substantiality, the court applied a five part test:

“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″ [para 23].

As to the first substantiality factor, the court said:

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” [para 25].

As to the fourth substantiality factor, the court stated:

“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” [para 27].

The court did not find the other substantiality factors particularly relevant to this dispute and concluded that

. . . 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” [para 28].

But the court continued its analysis to find thateven if the reproduced portions of the Kay Work amount to a substantial part, I find that the respondents’ reproduction constitutes fair dealing for the purposes of news reporting, pursuant to section 29.2 of the Copyright Act“[para 29].

Before turning to an analysis of the six fair-dealing factors, Justice Rennie reiterated the CCH doctrine that fair dealing is best understood as an integral part of the copyright regime and as a user’s right, and that news-reporting should be given the same “large and liberal” interpretation as research:

The SCC stated in CCH, at paragraph 51, that the fair dealing purposes (in that case, research) “must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.” Applying this large and liberal interpretation to news reporting, I find that the respondents’ dealing in respect of the Kay Work falls within this purpose. They posted the excerpts of the Kay Work on Free Dominion to promulgate the facts recounted in that article. Thus, the first criterion for fair dealing is met. The news reporting exception also requires that the source and author be mentioned, which is also satisfied in this case“ [para 31].

Turning then to the 6 fair dealing factors, [(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] the court held that:

These factors militate in favour of a finding of fair dealing in this case. As discussed above, the dealing was for one of the allowable purposes under the Copyright Act. The amount of the dealing was very limited. The reproduced portion of the Kay Work contained mostly facts and did not contain most of the original commentary by the author. The nature of the work favours a finding of fair dealing. 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. [para 33]

On the other hand, the court also found that some of the factors weighed less strongly in favor of fair dealing:

…there was arguably an alternative to the dealing, namely providing a summary of the Kay Work instead of reproducing excerpts. Also, the character of the dealing does not strongly support a finding of fair dealing. The excerpts are widely distributed on the internet as opposed to the making of a private copy.” [para 34]

Balancing all the factors together, the court found that “the reproduction of the Kay Work falls within the fair dealing exception for the purposes of news reporting” [para 34].

Thus, because the reproduction of the Kay Work did not constitute a substantial part, and even if it did, the reproduction falls within the scope of fair dealing for the purposes of news reporting, the application in respect of the Kay Work is dismissed” [para 35].

It is with respect to the third claim that the issue of linking arises. This claim involved a photograph of Warman (taken by photograher Barrerra and assigned to Warman) which Warman had posted on his personal website. Fournier never uploaded the photo to www.freedominion.com, but linked back to the Warman site. Later, Warman removed the photo from his website at which point the link from www.freedominion.com did not cause the photograph to be displayed. The court applied the general rule that “making a work available on an internet website accessible to the public constitutes authorization of communication by telecommunication” [para 36] and found that:

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” [para 37].

The court again stressed that Warman’s posting of the photo on his own website was within his own control:

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” [para 38].

While it is this last aspect of the case that is directly relevant to the issue of linking, bloggers, tweeters online journalists of all sorts can take much comfort in this decision. For one thing, we have another instance of a court giving purposeful effect to the language in section 3 that says the owners’ reproduction right is not even triggered without an initial substantiality analysis. For another, the broad application given to research in CCH is being applied here to “news-reporting.” And the treatment given to linking is consistent with the normal expectations of internet practice, previous case law, the statute and just plain common sense.