Canadian Court Considers Copyright Infringement by Linking and Fair Dealing for News Reporting

In Warman v Fournier, 2012 FC 803, Justice Rennie of the Federal Court held that posting a link does not amount to infringement of the copyright in the linked work, and also considered the application of the fair dealing exception for news reporting. The applicant, Richard Warman, obtained an exclusive licence to an article published in the National Post newspaper that was highly critical of him, apparently in order to suppress further publication of the article. The headline and more than three full paragraphs of the article were posted on the Free Dominion chat site run by the respondents, Mark and Connie Fournier. Justice Rennie ruled that this posting did not constitute a substantial part of the work, and so there was no infringement, but also found that, even if a substantial part had been copied, the copying fell within the fair dealing exception for news reporting. Even though more than three of 11 paragraphs were copied, these portions mostly recited facts and most of the commentary and original thought of the author was not reproduced. Following the Supreme Court’s decision in CCH Canadian Ltd v Law Society of Upper Canada, [2004] 1 SCR 339, 2004 SCC 13, Justice Rennie stated that the fair dealing exception for news reporting must be given a large and liberal interpretation to ensure that users’ rights are not unduly constrained. In this case, the Fourniers’ use of the National Post article was for the purpose of reciting the facts recounted in the article, which was found to constitute fair dealing. Warman obtained an assignment of copyright in a photograph, which included himself that he had made available on his personal web site. An inline link to the photograph was posted on the Free Dominion site, and Warman alleged that this constituted infringement of his copyright. Justice Rennie rejected this claim because the link was simply an address to access the photograph that was located on the applicant’s web site. The act of posting the photograph constituted authorization to communicate the work on the Internet, so there could be no infringement by linking to the work. It is notable that the linking was done by an "inline link" which generally refers to links to objects that are automatically retrieved and displayed inline by a user's browser so that the source of the object is not apparent. There is no indication in the reasons whether the source of the photograph was stated (and fair dealing was not addressed) and there was no discussion of the difference between inline links and embedded links that require users to click on them in order to access content. In a complete victory for the unrepresented respondents, Justice Rennie also rejected a third claim of infringement as being barred by the statutory limitation period. It will be interesting to see if Warman appeals this decision, as some have suggested he will. For commentary, visit: http://tinyurl.com/blzztdj; and http://tinyurl.com/d8jnee6 Summary by: Tom Feather