Canada’s Debate

I was casually wandering through the blogosphere this afternoon (which is what I do when I get depressed at the job listings that I turn up) when I came across this post from the Northern Ontario Liberal There is nothing disagreeable in the post itself (I commented on the very same issue yesterday. What is interesting is that the NOL has reprinted the entire article. Now, the article is obviously a copyrighted work, so I got to wondering, “is that copyright infringement?” From my studies I have a peripheral familiarity with Canada’s Fair Dealings exemptions towards copyrighted material, so I went back to the Copyright Act and did some reading. Here are the two exemptions which would seem to apply:

29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:

…

Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned:

Both exemptions require proper citation, but they seem overly broad and unhelpful in my enquiries, so I looked back through an old syllabus, and came up with a legal decision which I led a seminar on: CCH Canadian Ltd. v. Law Society of Upper Canada. Basically in this case there were two questions, were the headnotes, indices and editor’s notes in certain legal publications “original works,” and was the Law Society infringing copyright by allowing these works to be copied by the users of their law library. Neither question speaks specifically to bloggers, but the decision did more than just answer these narrow questions; it also clarified and quantified the balance of protections offered by the Copyright Act and Fair Dealings clause. These passage in particular speaks to the issue:

Both the amount of the dealing and importance of the work allegedly infringed should be considered in assessing fairness. If the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement. As the passage from Hubbard indicates, the quantity of the work taken will not be determinative of fairness, but it can help in the determination. It may be possible to deal fairly with a whole work. As Vaver points out, there might be no other way to criticize or review certain types of works such as photographs: see Vaver, supra, at p. 191. The amount taken may also be more or less fair depending on the purpose. For example, for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision. However, if a work of literature is copied for the purpose of criticism, it will not likely be fair to include a full copy of the work in the critique.

…

Alternatives to dealing with the infringed work may affect the determination of fairness. If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court. I agree with the Court of Appeal that it will also be useful for courts to attempt to determine whether the dealing was reasonably necessary to achieve the ultimate purpose. For example, if a criticism would be equally effective if it did not actually reproduce the copyrighted work it was criticizing, this may weigh against a finding of fairness.

Basically, what Justice McLachlin is telling us is that in measuring the “fairness” of our dealings with a copyrighted work, we must consider both the amount of copyrighted material we use, and the necessity of it’s use in our own works.

My personal standard is never more than two consecutive paragraphs at a time, only material which is necessary to elucidate my own criticism/review (which is the basis of my fair dealings) and never more than 10% of the copyrighted material. I’d be curious to know how other bloggers feel about their own practices in this area; it certainly seems to me like the post linked to at the top of this one is infringing on the copyright of the Detroit Free Press… but I’m no lawyer.