All Wrapped Up - Canadian Federal Court Decides on the Sharing of Pay-walled Copyright Works

While the European landscape has changed and clarified itself to a great degree in relation to the use of copyright protected content online (see more for example here, here and here), the rest of the world, comparatively at least, has stayed relatively quiet. One issue in particular, meaning the accessing of pay-walled or otherwise restricted content through sharing of that content to others without access to is is legal or not, has trickled through more than others. Many would argue that, while not definitive, the EU is quite established itself on where it stands on this, but our cousins across the pond in Canada have yet to fully cement themselves in this question, as can be illustrated by this recent decision in the Federal Court of Ontario.

The case of Ontario Ltd (Blacklock's Reporter) v. Canada (Attorney General) dealt with an online news agency, Blacklock's Reporter, which specializes in news surrounding, predominantly, the Canadian government. The Department of Finance, a part of the Canadian government, distributed two articles from Blacklock' within the Department without seeking consent. The contents of the article are largely irrelevant to the case, but Blacklock's does keep all of its contents behind a paywall, with a DOF employee accessing the relevant articles through a single subscription, subsequently sharing them internally within the DOF. Blacklock's then took the DOF to court over copyright infringement.

The Federal Court had to assess whether the rights in those works had been infringed, and if that use then was protected by fair dealing.

The court did not dispute the copyright in the works under section 29 of the Canadian Copyright Act (nor did the parties), but did raise questions as to whether Blacklock's assertion of their rights could amount to an abuse of those rights. The question therefore focussed on the aspect of fair dealing.

Canadian fair dealing covers only a narrow set of exceptions in section 29, particularly for research, private study, education, parody or satire. The DOF argued that their use was for research purposes and didn't therefore infringe Blaclock's rights.

Section 29 was further expanded on in the milestone case of CCH (discussed more here), which set a two-part test on whether a use was protected by fair dealing: 1. Whether the dealing is for the purpose of “research” or “private study”, also known as an allowable purpose; and 2. Whether the dealing is “fair”. The latter, whether a particular use is fair, involved certain factors that the courts ought to consider:

"1. The purpose of the dealing, where an objective assessment is made of the “real purpose or motive” behind using the copyrighted work, such as for commercial purposes versus charitable purposes; 2. The character of the dealing, examining how the works were dealt with, such as whether multiple copies of works are being widely distributed, or whether a single copy of a work is used for a legitimate purpose; 3. The quantity or amount of the dealing, including the importance of the work allegedly infringed; 4. Alternatives to the dealing, such as whether there is a non-copyrighted equivalent of the work that could have been used instead; 5.  The nature of the work, such as whether the work has been published or is confidential; and 6. The effect of the dealing on the work, such as whether a reproduced work is likely to compete with the market of the original work."

While the above two categories relate more directly to the research exception put forth by, a more nuanced approach has been adopted for research in the SOCAN case, which were distilled by the court in the case at hand:

Research can be more 'challenging' than you'd expect

"Research does not need to be undertaken for the purpose of the user engaging in its own act of authorship or creativity; Research is not limited to creative purposes but can be “piecemeal, informal, exploratory, or confirmatory”, and can be undertaken for no purpose except personal interest; The first step in the fair dealing analysis is a relatively low threshold and does not require the creation of a new work; and The analysis should be undertaken from the perspective of the user or consumer’s purpose". Here the court gives a very wide definition of research, potentially including mere personal interests, even if not 'academic' research, which can include much of the information used to support the purpose. This writer is encouraged by this finding, since a more narrow, limiting definition would deter private researchers (such as this 'researcher') and the potential sharing of that knowledge with others.

The Court quickly, without giving the above much consideration, determined that the DOF's use was indeed fair dealing. This included the fact that, for example, the materials were acquired legally through a licence, the use was for legitimate business reasons internally in the DOF, no commercial advantage was sought and that it was limited to only 6 individuals. Even though the terms and conditions were breached as a result, the court rejected that this would prohibit or prevent fair dealing from applying in those instances. They, however, have to be brought to the attention of the subscriber, which Blacklock's had not done (albeit the terms did exist, but were never formally accepted by the individuals signing up). The defendant was therefore never aware of the terms, and of their own breach as a result.

Judge Barnes determined that fair dealing did apply in this case, and noted that "...Absent consent, subscribers and downstream users are subject to the obligations imposed on them by the Act. But at the same time they enjoy the considerable protection afforded to them under the statutory fair dealing provisions". He further highlighted that, as contested by Blacklock's, that subscriber services like this would suffer very little detriment to their business model, but it does not allow for a carte blanche for users to share the content, which is restricted to genuine fair dealing either way.

The case shows that, provided the uses are legitimate, fair dealing should be afforded a broad and inclusive definition, especially when it comes to research. One can agree with this, since a strict interpretation would act counter-intuitively to the sharing and dissemination of information. The decision also highlights a potential need for the UK to adopt a similar 'fair use' policy, which broadens and protects legitimate uses in a more effective way than restrictive categories.

Source: Barry Sookman

Can You Infringe Copyright by Browsing the Internet?

Browsing the web can be full of pitfalls, both legally and in terms of your own safety. It's this world that we endeavor to navigate on our times surfing, but often don't think about the unknown issues or are blissfully unaware of the implications of our digital actions. It's because of this many things can slip through the cracks. Web browsers have made temporary copies of the content we read, look at and watch for years, more often than not without our knowledge, and this can present legal issues when dealing with copyrighted content, whether we want it or not. Whether just innocent surfing can infringe copyright is an interesting question, and this writer for one automatically thought the answer would be obvious, yet one would be surprised about the nuances behind the answer.

The case which dealt with this interesting conundrum was Public Relations Consultants Association Ltd v The Newspaper Licensing Agency Ltd, having been referred to the European Court of Justice by its UK counterpart earlier on in 2013. The Public Relations Consultants Agency (PRCA) is an association public relations professionals, who among other duties monitor the news for their clients, clearly to safeguard or preempt any potential PR disasters. The members of this association used a service provided by the Meltwater group of companies; one which used software to automatically compile an index of words used by newspapers in their content online. To better utilize this service Meltwater's clients provide them with a list of search terms which interest them, which are then used to create an index which is oriented around those key words. In the service's results the opening words of the article, the key word and a few surrounding words and a hyperlink are provided for the client, allowing them to find the article containing their desired content more easily. The service does not circumvent any paywalled articles, and the client will have to pay for that specific content should they wish to view it. The respondents of the appeal objected to this use of their content, and took the Agency to court, culminating in the UK Supreme Court in the earlier part of 2013.

The button that all internet users wished existed for certain purposes

The question faced by the ECJ therefore was, as iterated by the Supreme Court: "The question which arises on this appeal is whether [Internet users reading the an article online] are nonetheless infringing copies unless licensed by the rights owner [by creating temporary copies of those works]". More specifically whether this infringes Directive 2001/29/EC, and through which the Copyright, Designs and Patents Act 1988.

Under Article 5 of the Directive incidental copies are treated as not infringing copyright should they be "... temporary, transient or incidental, which are an integral and essential part of a technological process and whose sole purpose is to enable... a transmission in a network between third parties by an intermediary, or a lawful use... and has no independent economic significance". Arguably, on the face of it, the matter is quite clear-cut, as temporary copies are essential to how the internet functions and how we both conserve and make internet traffic more efficient. Nonetheless, the matter is still not that simple, at least from a legal perspective.

The court quickly saw that the temporary copies made through the viewing of websites indeed do satisfy the first requirement under Article 5, as the copies are lost once the user moves on from the website and other content is subsequently brought in to replace the temporary copies of the prior page. This makes those copies wholly temporary in nature. The court then moved on to the third requirement, under which the copies have to be essential for the technology to work properly; or as presented in Infopaq International v Danske Dagblades Forening: "...first, the acts of reproduction are carried out entirely in the context of the implementation of a technological process and, secondly, the completion of those acts of reproduction is necessary, in that the technological process could not function correctly and efficiently without those acts". As the user has to say (mostly) in the creation or deletion of these copies, the technology needs for those copies to be created in order to function as intended, as they are a part of its process. The copies are, as said above, essential to the internet's proper function and help prevent excess volumes of traffic, which would undoubtedly choke the internet beyond use. The court seemed quite satisfied with the technology satisfying the second requirement, meaning that the technology is needed for the process to function properly and efficiently, and therefore satisfies the third requirement.

Under the second requirement the copies have to be transient or incidental, and as the copies, as stated above, are deleted once the user switches to a different page, they are transient, even if there is some level of human intervention in their deletion. Finally, the copies are created as a part of the technology which uses them, and do not by themselves exist independent of it nor have a purpose outside of it, making the copies incidental for the purposes of Article 5. The court therefore saw that the temporary copies created during web browsing do not infringe copyright and are excluded as a part of Article 5.

As one can see the ECJ's decision was one of pragmatism and common sense. The prevention of transient copies in the viewing of content on the web would be detrimental to how the internet functions today, potentially even causing issues in its overall usability. As said above the answer to the question seemed obvious, and quite frankly, should not have even been argued in court this far. The matter will be passed onto the Supreme Court to decide on ultimately; however the ECJ's word is a powerful one and clearly demonstrates an unwillingness to compromise the net as we know it for the sake of copyright.

Source: The Guardian