The Federal Court from a Writer’s Perspective: Richard Warman and the National Post v Mark Fournier and Constance Fournier

As a writer, there is always a desire of wanting readers to actually read your what I have spent hours pouring over, crafting intricate sentences in a way that best frame my thoughts. In the days of instant publication, getting re-tweeted constitutes a good day. This desire is tempered with the need to protect the integrity of my work, and to profit from it in some way, whether financially or through credit. Enter the copyright.

On June 21, 2012, the Federal Court of Canada in Richard Warman and the National Post v Mark Fournier and Constance Fournier, 2012 FC 803 issued an important decision that will guide websites on publishing other sources. The applicants, Richard Warman and National Post alleged copyright infringements of their works. The court ultimately dismissed the application against Mark and Constance Fournier.

Background

There are three different copyrighted pieces at issue this case: a speech authored by Richard Warman (the “Warman work”), an article written by Jonathan Kay while employed by the National Post (the “Kay work”), and a photograph of Warman and another individual taken by M. Barerra (the “Barrera work”). These three copyrighted pieces were posted to the website www.freedominion.com (“Free Dominion”). The Warman work was posted via an upload, the Kay work was posted to a discussion thread, and the Barrera work was posted as an inline link. Free Dominion is an online political (Conservative perspective) news discussion forum. The discussion boards are freely accessible to view to the public (though there is a requirement of registration to reply to a discussion board).

Section 27(1) of the Copyright Act, RSC 1985, c C-42 defines an infringement of a copyright as the following:

It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.

Section 3 outlines the rights included in a copyright, specifically, as

“the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right.”

In Public Performance of Musical Works (Re), [1990] CBD 5 [Public Performance], the Canada Copyright Board held that a person authorizes communication of a work by telecommunication when that person makes the work available to the public on a service (19).

While there was thus a prima facie infringement of the Warman work, the court found that the complaint was made outside the prescribed time period as per s. 41(1) of the Copyright Act – the limitations period had expired. The National Post had obtained an exclusive license to the Copyright of the Kay work in January 2010. This enabled them to sue a third party for infringement.

Because Free Dominion only included the headline, three complete paragraphs and a part of a fourth (out of the work’s headline and eleven paragraphs), the respondents were not found to reproduce a substantial part of the Kay Work – a requisite element for infringement. Essentially, the parts that Free Dominion posted, as per the Court, were merely “the opening ‘hook’ of the article” (para 25). The majority of the commentary and the piece of originality authored was not reproduced – a substantial part of the Kay work was not reproduced signaling that there was no infringement. Much like my summary of the case facts and analysis thus far – the Court would render the analysis thus far simply the hook and not expressive of my original thought.

Moreover, Justice Rennie found that even if the Free Dominion had reproduced a substantial part of the Kay work, the actual reproduction constituted ” fair dealings for the purposes of news reporting, pursuant to section 29.2 of the Copyright Act” (para 29). Fair dealings creates an exception to infringement; it basically allows the “infringement” under certain instances, though the Supreme Court of Canada in CCH Canadian Ltd v Law Society of Upper Canada, [2004] 1 SCR 339 describes the fair dealings exception as more of an expression of user rights rather than a defence to infringement. The facts section was reproduced and the author and source were mentioned – therefore the criteria for fair dealings with respect to news reporting would have been satisfied and the court would have allowed an infringement, if there had been one.

For the final blow to the National Post in this case, making a hat trick, the Court found that the application in light of the Barrera work also failed. In Public Performance, the Court found that making a work available online that is publicly accessible constitutes “authorization of communication by telecommunication.” The Barrera work was posted on the applicant’s personal website – the communication occurred when someone posted a hyperlink connecting Free Dominion to the applicant’s website. This was not an infringement under copyright law.

It’s a Reader’s World – More Blows to the Post

I suppose this work could be copied and pasted to another website – so long as thecourt.ca and I were properly sourced. But in a world where I consider a re-tweet a compliment, I am not bothered by the thought of the copying and pasting, so long as the citation is given. The issue of the exclusive right to reproduce a work when posting to a public website is gone – as it should be. Prior to blogs and free new sources, there was a smaller supply of information. It made sense that readers would pay to get the news. Today, however, readers wield the power. Amateur and professional writers oversupply readers with information, forcing them to choose from a plethora of information. Writers and publishers compete fiercely for readers, and readers need not be loyal. Major new publications that used to rely on subscriptions are being forced to change their business models in order to keep up with technology reformatting the way in which news is distributed.

The National Post’s financial troubles were simply compounded by the rulings. Five days after the decision was rendered, Postmedia Canada Corp, the National Post’s parent company, sold the Toronto Headquarters, which was the home of the National Post, in an effort to pay back some of its debt. Further, in May, the news giant canceled three of its Sunday editions and the Monday edition of the National Post. And finally, early this month the paper posted that it lost $12.1 million in its last quarter. Needless to say, this is not good news for traditional journalism. Finances are not going their way, and with the Federal Court delivering three blows in this decision, neither is the law. These recent legal losses, coupled with the new fair dealing provisions that were just introduced in Canadian law through Bill C-11, and the just-released copyright pentalogy of cases will only add salt to the National Post’s wounds. Hopefully the paper can adjust its business model in time so it can live to write another day.