Michael Geist: When is it okay to share copyrighted material internally?

Background: In 2014, Finance Canada was taken to Federal Court by an Ottawa news agency after the outlet claimed copyright violation by the department, alleging that staff emailed two news articles internally.

Finance Canada, for its part, responded that the articles “were emailed for non-commercial, research purpose and used fairly.”

More recently, Blacklock’s Reporter is suing Health Canada for more than $115,000 CAD for “the unauthorized use, distribution, and third party dissemination” of its paywalled content, and/or breach of contract.

In light of cases like these, it’s sometimes hard to know what the average Canadian should do if they want to share an article internally for research purposes — especially if they don’t want to step on any legal landmines.

We asked University of Ottawa professor and Canada Research Chair in Internet and E-commerce Law Michael Geist to explain:

Agility PR Solutions: Is there a gap in knowledge when it comes to copyright law among Canadians?

MG: There’s certainly often a gap. That stems from those who aren’t aware, but also because there are real uncertainties about where the law falls on these issues. These cases are both clear examples of that: you have a provider who feels there has been an infringement and is seeking compensation, but you’ve also got a department who is responding in kind and believes that both on contractual and copyright grounds, they’re operating within the law.

Sometimes the law isn’t clear-cut. But even when it is clear-cut, you get differing opinions on how to interpret it.

APRS: So can a user share a full copy of a story if it is for research purposes?

MG: This is an unsatisfying answer, but it depends. If you’re not under any contractual restrictions (from your subscription agreement), then I think the answer is that yes (it is okay). The dissemination of a single article for those purposes is likely to fall within the “fair dealing” exception.

Where things get more complicated is when there is a contract…that creates express limits on what they’re able to do with those articles. In that case the potential violation is not a copyright violation per se, but a breach of contract.

APRS: How does a typical reader or subscriber know they’re under a contract?

MG: There certainly will be cases where someone isn’t aware of limitations that might exist. And if you’re an organization subject to limitations and providing access to users, you’d likely want to provide users with knowledge about what they’re entitled to do with the information.

But bear in mind these contracts are themselves still subject to the law. It may be that some contracts seek to override the law, and there is still debate amongst some on whether you can do that.

APRS: When does it start to get really risky for those sharing content internally? Is there a rule of thumb in terms of the number of articles you can pass around?

MG: If a large number of articles all come from one source, it could impact the fair dealing analysis. But if we’re talking about one-off incidental copying of articles, the fair dealing argument may still be quite compelling.

APRS: How much impact does commercial vs. non-commercial use have?

MG: If you’re trying to argue that the copying was fair dealing, then there is a six-factor test that has been established by the Supreme Court of Canada to determine whether or not the use is more or less fair.

So commercial use is one of the factors, but contrary to what some have tried to suggest, it’s not disqualifying: it’s not the case that just because someone is (copying) for commercial purposes, that they have no opportunity at all to make a fair dealing claim.

(Please see this link, under the heading “Fairness of the Dealing”, for a full list and explanation of the six factors that help determine fair dealing).

APRS: What can people do to ensure they’re on the right side of the law at all times?

MG: If you’re regularly sending stuff around, and are subject to contractual limits, then you’ve got a number of options: you can get a site license that allows you to disseminate or distribute on a broader basis.; you can also obtain a collective license that covers a wide range of materials from different copyright collectives; or you can just go to the copyright holder for permission to distribute that particular piece.

APRS: Do you think we’ll see more of these types of legal actions as some media outlets become more and more cash-strapped?

MG: We might. I do think that as we see publications move toward paywalls and metering, they may find ways to enforce that — or at least send a few timely reminders that this is their business model, and they’re going to use the means available to them to try to enforce it.

This post was originally published, in a slightly different format, on September 15, 2014.

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Jim Donnelly

Jim Donnelly

Jim Donnelly graduated with a BA in History/English from Wilfrid Laurier University and a MJ from Carleton University. Jim heads Agility PR Solutions’ Media Insights Group which oversees the production of public and client media analysis reports and infographics. Jim was previously editor of the Ottawa Business Journal and related publications such as Ottawa Technology Magazine and Meeting in the Capital.