Blogging, posting, linking… infringing? Not in Canada

Current UK case law tells us that posting excerpts from an article published online infringes copyright in that article. Headlines are also protected, as they are deemed to form a substantial part of the article, and could in some cases be works in their own right  (NLA v Meltwater, reported here and here). The Court of Appeal has confirmed that the exception permitting fair dealing for the purpose of reporting current events does not apply to this type of copying. The question of whether the temporary copies defence applies is being appealed to the Supreme Court (see here).

Further, in a summary decision the UK courts have held that merely linking to a website that has published unlawful content could incur liability (McGrath v Dawkins).

 © owenwbrown

These issues form part of the current copyright consultation (a summary of the response is available here), but for the time being UK case law points firmly in favour of online copyright owners. The Canadian Federal Court has however recently decided a case which means much more freedom for bloggers and users of social media sites in Canada.

The case was brought by Free Dominion, "The Voice of Principled Conservatism". Free Dominion is a Canadian-based political news website on which users can post articles or link to online content for the purpose of political debate.

The Federal Court's decision relates to two works in which copyright was alleged to have been infringed. The first work was an 11-paragraph article published by the Toronto-based daily newspaper, the National Post. The article was initially reproduced in full on Free Dominion however it was reduced to a three and a half paragraph excerpt (including the headline) further to a complaint from the National Post. The second work in which copyright infringement was alleged was a photograph published on a photographer's website. The photograph was not reproduced on Free Dominion however a link to the photograph was posted.

© Rohan Kar

The Federal Court of Canada dismissed both claims. It held that three and a half paragraphs was not a "substantial part" of an article and that Free Dominion had therefore not infringed the National Post's copyright. It is interesting to note that whilst in Canada three and a half paragraphs, including a headline, is not deemed to be a "substantial part", in the UK an extract consisting of  265 characters can be a substantial part of an article for the purpose of copyright infringement.

Further, the Federal Court found that even if the copying was substantial, the article had been used for the purpose of news reporting and was therefore fair dealing. As noted above this defence is not available in this context in the UK, however in Canada the court held that fair dealing should be given a "large and liberal" interpretation therefore news reporting could include posting extracts from articles online.

As regards the provision of a link to a photograph, the Federal Court held that the link was not copyright infringement. The court found that the photographer had authorised the communication of the work by posting the photo online, and noted that the photographer could remove the photo if he wanted to prevent people from linking to it.

This blogger is not aware of the UK courts having directly considered this question, however as noted above, the High Court for England and Wales has summarily found that it is possible to be liable for linking to defamatory material. We have yet to hear the outcome of this case, in contrast however last year the Supreme Court of Canada ruled against attributing a defamation claim to online links.

It seems that the English and Canadian courts are taking very different approaches to online liability, however if the Free Dominion case is appealed (which seems likely) the lay of the land may yet change again. In the meantime this case provides reassurance for bloggers and users of social media sites in Canada that they may include short extracts from published material and may link to other sites without fear of reprisal.

Of Glasshouses, Stones and Copyright Infringement

German media reports on alleged copyright infringement by a senior conservative politician (see for example this article in the Handelsblatt). Siegfried Kauder (CDU) recently proposed that copyright infringers should be disconnected from the Internet for three weeks – without a trial, based only on repeat complaints by copyright owners to the relevant internet service provider. He saw this as a milder alternative to criminal prosecution or costly warning letters (costly for the infringer who must pay the right holder’s attorney’s fees).

While that suggestion is constitutionally problematic and was not really taken seriously by anyone even within his own party, it seems to have prompted someone to investigate whether Kauder himself abides by copyright law at all times. Well, apparently not. It is alleged that at least two photographs on his website, showing castles in his constituency, were put there without a licence. The author is not credited either, which would make for an additional infringement of moral rights.

A quick Google Images search reveals the identity of the apparent authors, but as yet neither of them has given a public statement. The pictures have been taken down from Mr Kauder’s website but can still be accessed via archiving sites.

His political rivals and most of the media are understandably delighted by this (minor) scandal. He who sits in the glasshouse should not throw stones or suggest disabling other people's Internet access and all that. However, some people have pointed out that Mr Kauder will hardly have created the website himself. According to the information provided there, it was indeed designed by someone else, but of course that does not answer the question who selected or provided the photographs.

Assuming the person who designed the website also chose the photos and Mr Kauder was unaware that no licence had been given, he would probably not be deemed a direct infringer. He would be liable as a “Störer”, though. The German law concept of “Störerhaftung” does not translate easily – “disturbance liability” would be the literal translation, but liability for breach of a duty of care is probably more accurate in this context. That means that he should have checked that permission to use the pictures had been granted and that he must now make sure that the photos are not used again on his website, but he will not be liable to pay damages.

Not such a big deal then, perhaps, but I guess the public embarrassment hits him harder than a few hundred or thousand euros in damages would. What do you think: poetic justice, preposterous witch-hunt, or politics as usual?

Monkey See, Monkey Do, Monkey get Copyright, too?

By now it’s all over the twittersphere, the blogosphere and every other made-up sphere on this green and blue sphere.  The monkey that stole a photographer’s camera and got her pictures published in the Daily Mail. 

Copyright experts and dilettantes alike are going ape trying to analyze who owns the copyright in these images.  Why?  Because the Daily Mail put a copyright notice on two of the pictures in its article.  Most of the analyses I’ve seen are Americans trying to sort it out under American law, which is typical, but not necessary the best approach here.  You see, the monkey is Indonesian.  The work was made in Indonesia.  The photographer who’s camera was taken and the  agency claiming copyright ownership of the photos are British.

The main questions being discussed: Does the monkey get the copyright?  If not, does anyone?

Monkey stole the camera from the camera man

Under Indonesian copyright law an author is “a person or some persons.”  Miss Monkey is ruled out right there I’m afraid.  But what about under British copyright law?  Since it’s a British company claiming copyright, any suit is likely to be brought in the UK.  Indonesia is a member of Berne and TRIPs, so the photos should be treated the same as UK works under UK copyright law.  Unfortunately for the monkey, The UK copyright law also defines author as “the person.”  Sorry monkey, it’s not you.

If not, then who?

It appears the monkey, by virtue of not being a “person,” cannot be the author of the photos.  (…unless there’s a statute somewhere that makes monkeys a person the way corporations are made a person.)  So who gets the copyright? 

The photographer / Carters News

If the photographer did own the copyright, it appears that he transferred his rights to Caters News Agency Ltd based on the copyright notices on the newspaper photos.

There is a clause in Article 7 of the Indonesian copyright law that specifies if a work is designed by one person and worked out by another, then the one who designed the work gets the copyright.  If the photographer had set up the shot and the monkey had just taken the photo, the photographer would likely have the copyright.  But the photographer didn’t design anything here.  He just left his camera.  The monkey did all the designing in the photos, so this article shouldn’t apply.

Indonesia

Perhaps more useful here is Article 9, “If a legal entity announces that a work has originated from it without mentioning a person as the author, then the legal entity shall be deemed to be the author, unless proven otherwise.”  The monkey took the photos in an Indonesian national park.  The Indonesian government presumably owns that park and is a legal entity.  It would seem that if the Indonesian government claimed it was the copyright owner, then it would be.  Except for that “unless proven otherwise bit.”  But this leads us to another question, does the park own the monkey? 

If not having an author as defined under the copyright law is the same as having an unknown author, then Indonesia owns the copyright under Article 10A of the Indonesian copyright law.

No one

The main claim I’ve seen in the US discussions of who should own the copyright is that no one should; the photos should be in the public domain.  And it appears, under UK copyright law, they’re right.  - Now, this is the part where, knowing that there are a great deal of very knowledgeable UK copyright practitioners who read this blog and that the author is not one of them, the author asks for forgiveness and clarification should she get anything wrong.  -

Under Section 153, the work only qualifies for copyright protection if it meets requirements in several different areas including the area of author.  Section 154 outlines the requirements the author must meet in order for the work to receive copyright protection. 

• Option one, a British citizen.  Pretty sure the Indonesian monkey is not a British citizen.
• Option two, an individual domiciled or resident in the UK.  Monkey lives in Indonesia.
• Option three, an individual domiciled or resident in another country to which the relevant provisions of this Part extend.  This seems to include any countries to which the UK must extend national treatment with respect to copyright.  Since Indonesia is a member of Berne and TRIPS, Indonesia would be one of these countries.  It might seem like we need to know if the monkey is an individual, or if it can be domiciled or resident.  But, that doesn’t matter because the first part of Section 154 says “if the author was at the material time a qualifying person.” (emphasis added)

So it appears under UK law, the photos are in the public domain.  Under Indonesian law, the matter is less clear.

Barrels of Fun

Perhaps more fun than the real story are all the different extra facts you can add to make even more puzzlingly-fun scenarios.  What if the monkey belongs to a zoo?  Or a person who taught him to take pictures?  What if the park or zoo where the monkey lives posts a sign that says the copyright of any photographs taken by animals inside the park or zoo belong to the park or zoo?  What if it is not a monkey but one of the gorillas that can speak sign language or otherwise communicate to subjects in a photo how to move?

Personally, I like the position one of my colleagues took: Forget the copyright issue.  The monkey should sue for rights of publicity.

Scottish court rules on jurisdiction regarding online infringements

Here's an interesting Scottish decision, from Sheriff Principal Lockhart, in Mackie v Askew which considers jurisdiction in relation to infringement of copyright and moral rights by activities using the internet, with a focus on Article 5(3) of the Brussels I Regulation. In short:

"Photographs had been placed on the internet by Mackie, and Askew had then placed these photographs on her own internet site. The key issue is which of the Scottish Sheriff (lower) courts has jurisdiction, on the basis of Civil Jurisdiction and Judgments Act Order schedules 4 and 8. Scotland is split into a series of sheriffdoms, determined by geography. These courts have limited IP jurisidiction, but can look at copyright cases.

The court made particular reference to the Scottish decision in Bonnier Media Ltd v Gregg Lloyd and Kestrel Trading Corporation (2002 Scot CS 347 (1 July 2002) regarding jurisdiction, domain names and trade mark infringement. The court then held that the action could be raised where the harm is felt -- as well as where the harmful event occurs. Here, the harmful event occurred in the Sheriffdom of Greenock, where Askew is. Harm was felt, however, in the Sheriffdom of Ayr; and it is was therefore permitted for Mackie to raise the action in Ayr.

This note has been kindly furnished by Abbe E. L. Brown (Lecturer in Information Technology Law, University of Edinburgh), who adds:

"This decision is likely to be of key importance for those seeking to raise copyright actions Scotland, and may also be of broader interest regarding article 5(3) and litigation in relation to the internet".