Posts Tagged ‘copyright infringement’
When the paywall “protected” Blacklock’s Reporter sued the Government of Canada for an alleged copyright violation, the court concluded:
 Any reporter with the barest understanding of copyright law could not have reasonably concluded that the Department’s limited use of the subject news articles represented a copyright infringement. Indeed, the fair dealing protection afforded by section 29 of the Copyright Act, RSC, 1985, c C-42, is so obviously applicable to the acknowledged facts of this case that the litigation should never have been commenced let alone carried to trial.
Howard Knopf summarizes the lawsuit thusly:
“The Attorney General of Canada has achieved a clear victory against Blacklock’s Reporter in the latter’s attempt to collect damages of $17,209.10 based upon its supposed institutional subscription rate because a few public servants in the Department of Finance received, read and distributed two Blacklock’s articles about a file they were closely involved in that had been sent to them by a Blacklock’s subscriber.”
Copyright law in Canada is at minimum confusing to most non-lawyers, even those of us involved in content creation. As a self publishing author, and to some extent a citizen journalist, it is important that I have more than the barest understanding of copyright law. Like most self publishing bloggers lacking legal staff, I’d rather be writing than spending time in court, so when in doubt I’m inclined to self censor for my own protection, something known as copyright chill. Since I’ve been actively weighing copyright law as it applies to me and my own work (since Canada’s 2010 Copyright Consultation), I am always interested in how copyright issues play out.
So I was particularly curious about what Justice Robert Barnes described as the “obviously applicable” fair dealing protection.
(j) What occurred here was no more than the simple act of reading by persons with an immediate interest in the material. The act of reading, by itself, is an exercise that will almost always constitute fair dealing even when it is carried out solely for personal enlightenment or entertainment;
In other words reading (or by extension viewing, or listening to) copyrighted material is allowed under Canada’s Fair Dealing provisions, even when such material is locked behind a paywall. Sharing such material is another matter. A large part of the reason the subscriber who shared the articles was not held liable seems to be Blacklock’s failure to adequately spell out in its terms of service what a subscription does or does not allow. Although the judgement draws attention to the fact:
(k) While the public interest is served by the vigilance of the press, copyright should not be a device that serves to protect the press from accountability for its errors and omissions. The Department had a legitimate interest in reading the articles with a view to holding Blacklock’s to account for its questionable reporting.
Excess Copyright tells us:
“…the amount claimed by the Government, which was “$115,702.30, based on 70% of the actual value of professional hours expended in the defence of the claim and including disbursements of $7,020.98.”
Although Mr. Knopf views this as a victory, from my perspective it’s not.
Although I am not a lawyer, there seems to be a suggestion that, had the TOS been worded differently, the subscriber’s decision to share the articles– in spite of holding the publisher to account– such an action may well have been construed as illegal copyright infringement, specifically circumventing Technical Protections Management (TPM). The plaintiff sought to make this latter argument, but the Judge didn’t allow it.
To my mind, the biggest problem with copyright law is the court system. Fighting a copyright claim in court wouldn’t only eat into an independent creator’s time, if it costs $115,702.30, $65,000 or even the two thousand dollar settlement the Government offered would be beyond the means of most.
It doesn’t matter whether a copyright infringement lawsuit has merit or is spurious. The Government of Canada may have the wherewithal to fight such matters in court, but this is hardly true for the vast majority of citizen journalists, self publishers or bloggers. Because copyright battles are fought through the legal system, creators, bloggers and self publishers are at an enormous disadvantage to large well funded multinationals or copyright trolls with predatory business models.
There are some websites I access that are partially locked behind paywalls, but publish some articles publicly. I decided a long time ago I don’t want to share links to sites that are locked behind paywalls, or even registration walls, because I don’t want to compel my readers to have to sacrifice their money or privacy to be informed. Because of this, I have made it a point not to subscribe to any paywalled site, simply to ensure I don’t share such links inadvertently. But now I am wondering, are subscribers aware that sharing information — perhaps even in a quotation — from such sites risks charges of copyright infringement? If so, it is surely a disincentive to subscriptions.
Nora Young interviewed CIPPIC’s David Fewer on her CBC Spark program, and one of the points that they discuss is the worry that TPMs (digital locks/DRM) will stop Canadians from doing “what we what we would ordinarily be allowed to do under fair dealing.”
But it is more than that.
Fair dealing is only part of it. Under Bill C-11 TPMs will stop us from doing things we are legally allowed to do, including things that have nothing to do with fair dealing.
If it is illegal to circumvent TPMs, Canadians will be prevented from accessing content that is in the public domain, or work that has been licensed to share. This is already happening now.
As a writer, I’ve been appalled that books in the public domain have been locked behind TPMs. Bill C-11 will make it illegal to circumvent this kind of TPM. Even using a pen and paper to hand copy the words of a public domain work like The Happy Prince if TPMs are present, will be copyright infringement – and illegal – when Bill C-11 becomes law.
Bill C-11 will make it possible for Microsoft to prevent people from replacing the Windows Operating System that comes preloaded on most computers with free software of our choice ~ like Linux. So Bill C-11 could very easily be used to kill free software in Canada.
Even worse, if it illegal to circumvent TPMs, it will be possible to prevent Canadians from accessing content that is our own.
When my sister first got Windows 7, the software wouldn’t allow her to transfer photos of her own kids, from her own digital camera, to her own computer. That’s a real life example of how TPMs can go terribly wrong. Because the assumption behind TPMs is that we are all infringing copyright, so the default is always maximum. Had Bill C-11 been the law at that time, my sister would have had to break the law to circumvent the TPMs (that wrongly accused her of copyright infringement) to transfer her own photographs — which she unquestioningly owned the copyright for — from her own digital camera to her own computer — both devices being her own physical property.
Just now I’m reading Lawrence Lessig’s “Free Culture,” where he writes about the MPAA argument that Intellectual Property should enjoy the same level of protection that physical property does.
“Creative property owners must be accorded the same rights and protection resident in all other property owners in the nation. That is the issue. That is the question. And that is the rostrum on which this entire hearing and the debates to follow must rest”
— Jack Valenti, MPAA president quoted in Lawrence Lessig’s “Free Culture”
But Bill C-11 goes far beyond equality, and clearly tips the balance so our physical property rights are overwhelmingly quashed in favour of the rights of Intellectual Property owners.
So it isn’t a very big jump to see that Bill C-11 will have the capacity to suppress independent creators from releasing our own work, because we won’t have the keys to the digital locks.
Enabling technology to enforce the control of copyright means that the control of copyright is no longer defined by balanced policy.
— Lawrence Lessig, “Free Culture“