“LOOKSMAXX” (v.)

If you run a Web site and you live in Canada and you want to quote somebody else’s work, what do you have to do to make sure you’re doing it legally?

In Canada, the Copyright Act tells us it isn’t an infringement to reproduce other people’s work under certain circumstances. The exemption I’ll be talking about here is fair dealing, which is noticeably different from fair use in the United States. Hence, if you’re a Canadian, do not call what you’re doing fair use and do not claim that fair use lets you do what you’re doing; there is no such thing in Canada.

What does the law say?

(I’ve copy-edited and HTMLified all excerpts, by the way, and removed references to other laws.)

Fair Dealing

Research or private study

Fair dealing for the purpose of research or private study does not infringe copyright.

Criticism or review

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

  1. the source; and
  2. if given in the source, the name of the
    1. author, in the case of a work,
    2. performer, in the case of a performer’s performance,
    3. maker, in the case of a sound recording, or
    4. broadcaster, in the case of a communication signal.

OK, so you’ve got four ways in which you may copy someone else’s work – if the copying is one or more of:

  1. research
  2. private study
  3. criticism
  4. review

You’ll notice that those do not constitute blanket permission.

There’s another purpose that might be interesting: News reporting. Web sites can and do break or report news. That would be unusual, though, for the personal Web site or Weblog, but if you report news, that exemption may apply to you.

There is no cut-and-dried answer

How do you know that your copying, even if you’re making a conscious effort to comply with the fair-dealing provisions, is really permissible?

You don’t. Fair dealing is an exemption and it’s also a defence. You can go ahead and duplicate under the ægis of fair dealing, but the original rightsholder could come along and allege that what you’re doing wasn’t fair dealing. They might give up if you wrote them back detailing how you complied with the guidelines for fair dealing, or they might not. Then it might end up before a judge.

The vagueness of copyright law is often confusing and misleading to laypeople. (Conversely, that’s what makes copyright interesting to lawyers and obsessifs.) A whole lot of issues, fair dealing among them, are contingent upon the facts of the case. So you can’t go around giving simplistic advice to people about what they can and cannot do when it comes to copying somebody else’s work under fair dealing.

Fortunately, a recent Supreme Court of Canada decision has significantly clarified things. You can rely on that ruling as pretty solid guidance about what’s permitted and what isn’t. All my remarks below pertain to personal Web sites operated by Canadians and not to other contexts, like schools or libraries.

CCH Canadian Ltd. v. Law Society of Upper Canada

The case in question was decided – unanimously – by the Supremes in 2004. CCH Canadian Ltd. v. Law Society of Upper Canada involved the duplication of copyrighted documents by the library of the Law Society of Upper Canada in Toronto, the governing body for lawyers in Ontario. LSUC won.

You can read the whole decision (which isn’t that hard to follow if you know something about copyright and is pretty difficult to follow otherwise), but the portions pertaining to fair dealing are shown below (again, edited):

The Law

…Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively. As Professor Vaver… has explained… “User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.” […]

The Copyright Act does not define what will be “fair”; whether something is fair is a question of fact and depends on the facts of each case…. Lord Denning explained this eloquently…:

It is impossible to define what is “fair dealing.” It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright. The tribunal of fact must decide.

[Linden] proposed that the following factors be considered in assessing whether a dealing was fair:

  1. the purpose of the dealing;
  2. the character of the dealing;
  3. the amount of the dealing;
  4. alternatives to the dealing;
  5. the nature of the work; and
  6. the effect of the dealing on the work.

Although these considerations will not all arise in every case of fair dealing, this list of factors provides a useful analytical framework to govern determinations of fairness in future cases.

The purpose of the dealing

In Canada, the purpose of the dealing will be fair if it is for one of the allowable purposes under the Copyright Act, namely research, private study, criticism, review or news reporting…. As discussed, these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users’ rights. This said, courts should attempt to make an objective assessment of the user/defendant’s real purpose or motive in using the copyrighted work….

The character of the dealing

In assessing the character of a dealing, courts must examine how the works were dealt with. If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing. If the copy of the work is destroyed after it is used for its specific intended purpose, this may also favour a finding of fairness.

It may be relevant to consider the custom or practice in a particular trade or industry to determine whether or not the character of the dealing is fair. For example… the importers and distributors of “study notes” that incorporated large passages from published works attempted to claim that the copies were fair dealings because they were for the purpose of criticism. The court reviewed the ways in which copied works were customarily dealt with in literary criticism textbooks to help it conclude that the study notes were not fair dealings for the purpose of criticism.

The amount of the dealing

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…. [T]he 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[; t]here might be no other way to criticize or review certain types of works such as photographs….

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 the dealing

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]f 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.

The nature of the work

The nature of the work in question should also be considered by courts assessing whether a dealing is fair…. [I]f a work has not been published, the dealing may be more fair in that its reproduction with acknowledgement could lead to a wider public dissemination of the work – one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair….

Effect of the dealing on the work

Finally, the effect of the dealing on the work is another factor warranting consideration when courts are determining whether a dealing is fair. If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair….

[…] These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing. In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair.

How to apply these concepts to Weblogs

First, I have a problem with the distinction between “review” and “criticism.” In the ordinary sense in which we would use these words in pop culture, they are merely lowbrow/middlebrow and highbrow versions of the same thing. Fleshbot and Ebert & Roper write reviews; Cahiers du cinéma writes criticism. Which term you use tends to be a value judgement based on your own taste and class consciousness, or your own assessment of how thoroughly and against what criteria the review or criticism was carried out. Review is to criticism as pornography is to erotica or craft is to art.

Note, though, that another dictionary definition of “review” entails simply “to look over, study, or examine again”; “look back on”; “examine”; “inspect formally.” This would seem to make it possible to reproduce limited portions of a work without added comment so that you and your site visitors could simply review or read it. But note that any choice of headwords or titling might themselves constitute comment (since the same Supreme Court decision found that features like these added “originality” to certain works).

Anyway, let’s look at a few scenarios.

I thought the item was interesting and I wanted to copy and paste it

You pretty much can’t do that for reasons other than fair dealing. Only the copyright holder may authorize copying all or a “substantial” amount of the work. You cannot decide what is substantial via a numerical formula, no matter what anybody may have told you to the contrary. (The notice at Kinko’s that they won’t copy more than 20% of somebody else’s work is entirely without legal basis, for example.) And as we saw above, sometimes you have to reproduce the whole thing just to comment on it. But if you just copy and paste somebody else’s article, even with attribution, you are probably infringing.

I copied and pasted the whole article, but I added my own comments

In other words, fisking. From what I can tell, you can do that. You’re clearly providing review and criticism. The substantiality issue is taken care of in some ways by the fact that point-by-point commentary requires the reader to fully understand the flow of the original document. I think that, in some cases, you could easily excise a few sentences from a paragraph and fisk merely the remaining sentences (that’s what I go to some lengths to do), but every article is different.

Moreover, the Supremes told us “[i]t may be relevant to consider the custom or practice in a particular trade or industry to determine whether or not the character of the dealing is fair.” Fisking is now a clear practice of Weblogging.

I would certainly advise against reproducing any original text that follows the last portion you’re commenting on. If you run out of things to say and the other document still has three paragraphs left, don’t duplicate those paragraphs. Stop copying after you stop commenting, in other words. (If your comment leads into or refers in advance to that last segment, that’s another story.)

I posted an E-mail I received

E-mails tend to be short and it may be impracticable to edit them significantly. But you have to actually consider whether or not you can edit the original; if you can, it’s better to do so. Note that E-mails, like all correspondence, are the property of the recipient, but are usually not “published,” that is, made available for public view. Note the “Nature of the work” section above.

I posted an IM exchange

As long as you were one of the participants, you were a coauthor of that exchange and have authorial rights. You can post it nearly any way you want. If you’re posting an instant-message exchange among people excluding you, it’s like any other text and you have to cite it correctly, as we’ll see below.

I took a screenshot and posted it

Even publishing a portion of a site may be “substantial,” but that would be an unlikely case. You could consider it news reporting: “This Web page looked as follows at the time I saw it.” It’s often a valuable form of record-keeping for sites that go down the memory hole or are changed suddenly. Gawker does this from time to time, as with anything by Matt Drudge.

I liked this photo so I posted it

You can’t do that unless you took the photo or you’re commenting on it in some way, or unless the photo was newsworthy (e.g., Abu Ghraib). Thumbnails were ruled to be legally OK in the U.S., though, which might be marginally helpful in Canada if you got sued.

In the context of posting a photo without any kind of review or criticism, I don’t think it would help you if you decided that you wouldn’t post a photo cropping or thumbnail larger than a certain percentage of the original or pixel dimension; that becomes a question of substantiality. If you start imposing that kind of policy, you may give up any credible right to post a full photo in another case, since you’ve pretty much established that posting an entire photo is not the only method available to you.

I retyped this passage from a book

Should be no problem as long as it’s insubstantial. The issue here is that you might be copying the very portion of the book that people are interested in buying it for. (The classic example here is Jimmy Carter’s confession in his autobiography about “lust in my heart”: It was a few lines long, but copying it was deemed to be reproducing a substantial portion of the book.) In this scenario, you might be simply posting the segment so people could “review” or read it.

There’s usually no other way to comment online about a printed book other than to retype the text (or scan and OCR and correct it). In the Supreme Court ruling, your available alternatives come into consideration when deciding if dealing is fair. It’s really hard even to link to Amazon Search Inside the Book pages, so until more printed works are also available online, what else are you realistically supposed to do?

I duplicated the original because I didn’t think people could understand what I’m writing about it otherwise

You could easily write a blog entry that is for review or criticism but that does not quote from the source text, or only uses a few words. Mainstream book reviews, many of which are online (thousands of them at Amazon), and book-related blogs will fall into that category. I think that requiring an avoidance of quotation is too poorly defined in the Supreme Court ruling, and it’s certainly too constricting on the author.

It’s really up to you to decide if your new work can only reasonably be understood without incorporating parts of the previous work. Another reviewer might have been able to get away with less quoting, but you’re not that other reviewer.

If your quotations are not substantial and are cited, I don’t see how any rightsholder could complain that you should have written your review or criticism their way rather than yours.

The Supreme Court case seems to put an undue emphasis on forcing commenters to go through contortions to avoid copying the original work; that’s rather at odds with the liberal interpretation of users’ rights we find elsewhere in the ruling.

I Photoshopped a photo, sort of like they do on Fark

Covered by another exemption, parody or satire, in almost every case. No, there is no parody defence in Canada, at least under copyright law. (I got this wrong in the original.)

I wasn’t selling it, so I could copy as much as I wanted

False. Next!

I liked this segment of The Daily Show, so I posted an MPEG

No, that would pretty much invariably be “substantial.” Unlike with, say, passages from a book, you’re showing a complete segment. I can imagine a scenario when you would provide enough new writing to fall under the criticism or review criteria, but then the rightsholder could state that, because video and writing are two different media, you could have simply summarized or transcribed the segment you are commenting on.

I liked this segment of The Daily Show, so I podcasted an MP3

If and only if you provided review and criticism in your podcast. Unless you’re excerpting the segment, you’d probably still be deemed to be reproducing a “substantial” portion of the work. But generally in podcasting, which is an asinine and inaccessible idea anyway, you only have time to excerpt, so this use case may be the more likely one to be in compliance with Canadian law.

Some things you absolutely must do

According to the Copyright Act, review or criticism are fair dealing if and only if you tell us who the author, performer, maker, or broadcaster was and what the “source” was. “Source” is like a library citation: What work are you quoting from?

If you’re quoting other Web sites, you have to link to that site; or give its URL in plain text (as you would find with URLs mentioned in mailing-list postings that are archived online); or, if the site or page no longer exists, say so but describe what you know about the author or source. Link to the actual post if possible rather than just the homepage.

I quite recommend using the cite attribute of the blockquote element (where you drop in the URL of what you’re quoting), but few authoring tools let you do so. (Try right-clicking on any of my block quotations in Mozilla to see them in action.) A rightsholder who tried to complain that you weren’t citing the source adequately might be shut down completely through the simple use of the aptly-named cite attribute.

If you’re quoting a printed source, give the title and at least the year of publication (for books) or issue number or date (for periodicals). “Yesterday’s Globe” might be a sufficient indicator if your entries are themselves dated. I don’t see anything wrong with giving the title by linking to Amazon or similar, even if you earn referral fees from subsequent purchases. I think linking to a book publisher’s page for that specific book, or even the author’s own homepage, constitutes citing the source even if your original words don’t include the title.

Author and copyright holder are often two different things. You can and should cite the author, and feel free to link to his or her homepage if it exists. If you’re exerpting from a story in a collection, give the author’s name and, if possible, the editor’s name. But if the author and copyright holder are different, you could call the copyright holder the “maker” (especially if it’s a publishing house) and list that instead.

Are you gonna get sued if you do this wrong?

Probably not. In fact, the consequences of infringement of this sort are usually nil. Rightsholders may never find out about your infringement, or they may not particularly care, or they may be unaware of their rights, or they may decide you’re not worth the time, energy, and possible legal fees.

Your choice, then, becomes one of doing things correctly because you know you’re legally supposed to and now have some good solid information… or doing things incorrectly because you assume nothing ill shall come of it. Your call, but if you choose the latter, don’t expect me to refer you to my ace lawyer.

The foregoing posting appeared on Joe Clark’s personal Weblog on 2005.01.19 17:30. This presentation was designed for printing and omits components that make sense only onscreen. (If you are seeing this on a screen, then the page stylesheet was not loaded or not loaded properly.) The permanent link is:
https://blog.fawny.org/2005/01/19/fair-dealing/

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