Court protects hyperlink activity on Internet
TECHWATCH
By DAVID CANTON, Special to QMI Agency
   


Hyperlinks form the basis of the way we use the Internet - ranging from Facebook to Twitter to blogs to email. But can linking to content that might be defamatory be itself defamatory? Can linking to copyrighted material be a copyright violation? Fortunately, the courts have said mere links to such content are not.

A recent Federal Court decision dealt with a link to copyrighted material. Warman and National Post vs. Fournier stemmed from Fournier posting portions of articles and a link to a photograph.

Regarding the photograph, the court found that the work was posted on the applicant's personal website and thus the communication of the work occurred by creating a link to the applicant's own website.

The work remained within the applicant's full control and if the author did not wish it to be communicated by telecommunication, he could remove it from his website, as he eventually did. Thus, the applicant authorized communication of the work by posting it on his website and therefore there was no infringement. In other words, a link to the photograph is not copying the photograph.

The copyright claim for posting an article was based on the reposting of 31/2 paragraphs of an 11-paragraph article.

Reposting portions of articles within a commentary or reporting context is very common. The court concluded that this amount of copying was not a "substantial part" of the work and therefore there was no infringement.

The court added that even if it was a "substantial part," the reproduction of the work was covered by fair dealing for the purposes of new reporting, as outlined in the Copyright Act.

The Federal Court cited a 2004 Supreme Court of Canada decision that explained fair dealing as an integral part of the copyright regime and a user's right.

Fair dealing "must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained."

That case is consistent with the 2011 Supreme Court of Canada decision in Crookes vs. Newton, where the applicant's defamation claim was based on two links created by the respondent that connected to defamatory material. The argument was that by using those hyperlinks, the respondent was publishing the defamatory material.

The court ruled that hyperlinks are fundamentally different from other acts of "publication." Inserting a link gives the author no control over the content in the article to which he or she has linked.

The court stated that a hyperlink, by itself, should never be seen as "publication" of the content to which it refers. When a person follows a link to a source containing defamatory words, the actual creator or poster of the defamatory words in the secondary material is the person who is publishing the libel.

The court concluded that applying traditional defamation rules to hyperlinkers would seriously restrict the flow of information on the Internet and, as a result, freedom of expression.

In both of these decisions the court applied a liberal interpretation in order to ensure users' rights are not unduly constrained, recognizing the unique nature of Internet linking.

David Canton is a technology lawyer and trade-mark agent at Harrison Pensa LLP. This article, written with the assistance of Erika Ramage, contains general comments only, not legal advice. Web: wwww.harrisonpensa.com/lawyers/david-canton Blog: www.canton.elegal.ca






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