“Fair dealing” online? No quick test, no one-size fits all

Mark and Constance Fournier operate the Free Dominion website as a political news discussion forum.  Richard Warman had an exclusive licence to the copyright in a National Post article entitled “Jonathan Kay on Richard Warman and Canada’s Phony Racism Industry”.  Warman alleged that the Fourniers infringed his copyright when excerpts of the article were posted on their website.

In its recent decision, the Federal Court of Canada determined that the reproduction of the excerpts on the site did not infringe Warman’s copyright.  First, the Court found that the excerpts did not amount to a “substantial part” of the work.  In the alternative, the reproduction constituted fair dealing for the purposes of news reporting. 

A quick read of the decision – and some of the subsequent commentary that has appeared online – suggest that borrowing parts of an article for a forum, blog or other piece is generally fine.  It’s important to remember, however, that there is no quick test to judge when using/borrowing/copying content that’s not your own crosses the line into copyright infringement.  For better or for worse: (1) infringement is always assessed on the facts of each individual case (there is no “one size fits all”); and (2) the legal tests are anything but straightforward. 

The comments below are not intended to critique the Federal Court’s analysis.  Instead, we simply point out the various steps the Court went through to assess the facts of this case against the law. 

“Not a substantial part”

Factors considered:

  •  quality and quantity of material taken (held: less than half the work, mostly made up of facts, not commentary)
  • extent to which the use adversely affects the copyright owner’s activities, diminishes copyright value (held: not directly relevant)
  • whether the material taken is the proper subject-matter of copyright (not directly dealt with)
  • whether the use was intentional appropriation, to save time and effort (no – intention was to preserve a record of facts)
  • whether the material taken is used in the same or a similar fashion as the owner’s (not directly relevant/not directly dealt with)

Quite a murky and arguably subjective exercise.  Moreover, the above points were only part of the analysis.  The Court went on to do an alternative analysis based on:

“Fair Dealing for the Purposes of News Reporting”

The Copyright Act enumerates three accepted types of fair dealing: research or private study; criticism or review; and news reporting.  The Copyright Modernization Act will add satire, parody, and education to this list. 

Because “fair dealing” is not otherwise defined in the Copyright Act, the courts have had to define it themselves.  The Supreme Court of Canada set out six factors to determine whether dealing with a work is “fair” (see CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13):

“(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.”

In the Warman case, the Federal Court assessed each of these, and found that “balancing all the factors together”, the use fell within the fair dealing exception for the purpose of news reporting. 

The take-away:  before you go ahead and use that lengthy quote, or borrow those paragraphs from that book/article/blog, think about whether that use has a good chance of meeting the “fair dealing” test. 

Consider for yourself: 

  • is taking several paragraphs from any article online really “news reporting”?  
  • is it fair to use a work, or part of a work, to drive traffic to your site instead of the (competing) source site?
  • would a link to the content – if possible – work as well as copying it?

Copying online has become commonplace, even expected in some cases and in some forums.  However, for better or for worse, the law still defines what is “fair” in this regard, and there is no quick test.

Margot Patterson

About Margot Patterson

Margot Patterson is Counsel with Dentons' Intellectual Property, Communications Law, Competition Law, and Media, Entertainment and Sports practice groups, with a practice focused on media, brands and intellectual property.

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