National Post v. Fournier (Copyright & Online Discussion Forums)

National Post v. Fournier (Online Discussion Platforms)

CIPPIC is intervening before the Federal Court of Appeal in National Post v. Fournier & Warman v. Fournier are being heard together. The cases raise important issues such as whether hyperlinks count as 'attribution' (a pre-requisite to the exercise of some fair dealing rights), the application of copyright law's limitation period to works published on the internet (specifically, whether something posted to the Internet is reproduced 'every day' it remains available online), whether reproducing excerpts from an original work amounts to "substantial" reproduction when assessing a non-economic claim of infringement and the nature of liability for Internet intermediaries such as online discussion platforms.

Facts: The case involves an article first published in the National Post, and reproduced (first in whole, by a pseudonymous user of the site, and later replaced with excerpts by the operators of the site) on freedominion.ca, an online discussion forum. The article itself is allegedly defamatory of one of the appellants -- Richard Warman -- and sparked a multi-page discussion of the issues it raised on the freedominon site. (We note parenthetically that the postings at issue in this appeal are one element of a series of disputes between Warman and individuals on the Free Dominion discussion forum). Warman sued the National Post and the Fourniers in defamation. In settling the defamation suit, the National Post took down the article from its own site and provided Warman with copyrights in the article. Warman then proceeded to sue the operators of freedominion.ca in copyright, in addition to the ongoing defamation lawsuit against them.

In its motion for leave to intervene, CIPPIC highlighted a number of issues as potentially damaging to online innovation and individual expression. An 'ongoing publication' rule proposed by the appellants in this matter would basically mean that statutory limitation periods have no application at all to online activity, based on the fiction that a work is 'reproduced' every day it remains online. 

Another element of the appellant's argument would make online intermediaries and other platforms liable for the activities of their third party users, even before any infringing content is brought to their attention! If adopted, this could pose a grave risk to Internet discourse.

The appellant also urges a very narrow interpretation of 'substantial reproduction', which could transform minimal acts of reproduction into potential copyright infringement. A short excerpt taken from a newspaper might place the onus on an online poster to defend their excerpting activities as 'fair' in a court of law. This case in particular highlights the potential hazards of expanding what reproduction may be deemed 'substantial'. Neither Warman, nor the National Post retain any interest in any economic market surrounding the article. The National Post has taken it down long ago. Warman's parallel ongoing defamation lawsuit on the basis of this article, in the meanwhile, suggests that the primary motivation for the copyright lawsuit is to have the article removed in order to address the harm to his reputation resulting from the publication of the article of the freedominion forum, not to control its economic distribution. But copyright law is designed primarily to protect economic rights, and lacks the proper calibration and safeguards in place for reputational protections that are inherent in the law of defamation.

Finally, the appellant urges a narrow and constrained interpretation of copyright's core user right: fair dealing. A pre-requisite to the fair dealing analysis is the need for attribution. Up for debate is whether mechanisms such as hyperlinks meet the formal requirements for 'attribution'. If they don't, this will cause deep problems for online excerpting as few take the time to write out full and formal citations online when linking to another online resource. Also at issue is the nature and scope of the fair dealing right itself: a right that should be broad enough to protect the act of reproducing an excerpt from a work to preserve its existence and stimulate critical debate!

The Court of Appeal also granted the Computer and Communications Industry Association (CCIA) intervener status in the appeal, and has encouraged CIPPIC and CCIA to collaborate in their interventions so as to avoid duplication of issues.

In February, after all written submissions had been filed and on the eve of the oral hearing, the National Post Appellant discontinued its appeal, followed closely by the Warman Appellant.

Resources

• CIPPIC's Factum, July 17th, 2013
• Decision of Madam Justice Sharlow, Granting CIPPIC/CCIA Leave to Appeal, 12 June, 2013
• CIPPIC's Factum in its Motion for leave to Intervene, May 1, 2013
• Decision under Appeal: Warman v. Fournier, 2012 FC 803