Canada: Quebec Superior Court Rules On The Concept Of Fair Dealing In Relation To The Substantial Reproduction Of Journalistic Works

Last Updated: September 27 2017
Article by Julie Desrosiers, Chris Semerjian and Patricia Hénault

On July 24, 2017, the Superior Court granted an interlocutory injunction against two media-monitoring websites, ordering them to cease the use and reproduction of the copyright-protected works of employees of three major Quebec newspaper publishers: La Presse, Le Devoir, and Le Soleil.

This decision has numerous implications for the recognition and scope of copyright in Quebec.

Fasken Martineau ( Julie Desrosiers and Chris Semerjian) represented CEDROM-SNi, La Presse, Le Devoir, and Le Soleil, the applicants in this important case.

Background

LaDose.pro and LaDose.ca are media-monitoring websites. The former, LaDose.pro, offers a paid service. Subscribers receive emails informing them of the latest news, three times a day, five days a week, and once on Sundays. The emails generally include, for each of the press articles listed, the newspaper from which the individual articles originate, the title, and the "lead" of the article, which generally corresponds to the first paragraph. The emails also provide a link to the full text on the newspaper's website.

LaDose.ca is a free service, but it displays third-party advertising. This website provides daily coverage of important news and headlines of the day from various media. Users are provided with the title of the individual articles and a link to the website of the newspaper from which each article originates. LaDose.ca is a free service, but it displays third-party advertising. This website provides daily coverage of important news and headlines of the day from various media. Users are provided with the title of the individual articles and a link to the website of the newspaper from which each article originates. LaDose.ca also displays a link to the paid services of LaDose.ca is a free service, but it displays third-party advertising. This website provides daily coverage of important news and headlines of the day from various media. Users are provided with the title of the individual articles and a link to the website of the newspaper from which each article originates. LaDose.ca also displays a link to the paid services of LaDose.pro.

Because they began operating over 18 months before the injunction was granted, LaDose.pro and Because they began operating over 18 months before the injunction was granted, LaDose.pro and LaDose.ca never had any agreement with the applicants that would allow them to use excerpts of articles from La Presse, Le Devoir, and Le Soleil. In fact, CEDROM-SNi, the fourth applicant in this case, is responsible for granting licences for the electronic use of any journalistic content published by the three newspapers for media-monitoring purposes. CEDROM-SNi even approached LaDose.pro and  even approached LaDose.pro and LaDose.ca to offer them the appropriate licences, which they refused.

La Presse, Le Devoir, Le Soleil and CEDROM-SNi applied for an injunction against LaDose.pro and  applied for an injunction against LaDose.pro and LaDose.ca. In Cedrom-SNI inc v Dose Pro inc,1 Justice François P. Duprat, writing for the Superior Court, found for the applicants. In his decision, Justice Duprat clarified several principles of copyright law and how they may apply in a journalistic context.

The title and the lead constitute a substantial part of the work.

After finding that La Presse, Le Devoir, and Le Soleil were the owners of copyright in the articles written by their employees, and that CEDROM-SNi held an exclusive licence to manage the electronic reproduction of those articles, the Superior Court had to determine whether the use of the excerpts by LaDose.pro and  held an exclusive licence to manage the electronic reproduction of those articles, the Superior Court had to determine whether the use of the excerpts by LaDose.pro and LaDose.ca infringed the applicants' copyright.

Courts will find that copyright has been infringed when a substantial part of the work is reproduced without the consent of the copyright owner. The Court in Cedrom thus had to determine whether reproducing the title and/or the lead of an article was sufficient to constitute substantial reproduction of that article.

This question is particularly significant in the digital era, as publications circulate more quickly and more easily than ever, and the ability to make reproductions is easy and virtually unlimited.

In a 38-page judgment, Justice Duprat thoroughly analyzed the applicable case law and confirmed that, on the evidence before him, reproduction of the title and lead of an article constituted reproduction of a substantial part of the work.

The decision first quotes the principle stated by the Supreme Court in Cinar, that whether a reproduction is substantial must be decided by its quality rather than its quantity.2 Based on the evidence before him, Justice Duprat concluded that the title and the lead generally are a fundamental part of an article.

Justice Duprat then examined the skill and judgment exercised when a title and lead are written.3 He found:

[Our translation] The publishers' testimony confirms that, if a given title and lead find their way into the published newspaper, they have been thought out and worked on by their authors, and are not random choices. There is creative work involved in the way the news is presented. Skill and judgment come into play [...].4

Justice Duprat ruled that the title and lead of an article are works protected by the Copyright Act, and that each of them, individually, may constitute a substantial part of the work.

The activities carried on by LaDose.pro and The activities carried on by LaDose.pro and LaDose.ca ‒ the former of which reproduced the title and lead while the latter of which reproduced only the title – infringed the applicants' copyright.

The activities carried on by LaDose.ca and The activities carried on by LaDose.ca and LaDose.pro do not constitute fair dealing with the applicants' works.

Reproduction of a substantial part of a copyrighted work is permitted under the Copyright Act in certain specific circumstances, even without the consent of the copyright owner. The Act does indeed provide for certain exceptions, the purpose of which is to ensure a balance between the public's right to information and the protection of copyright. These exceptions will apply only if the user of the work is able to prove that the use falls within the precise framework of one of said exceptions, and that the dealing is fair within the meaning of the Act.

The Superior Court therefore had to determine whether the activities of LaDose.pro and The Superior Court therefore had to determine whether the activities of LaDose.pro and LaDose.ca were covered by one of those exceptions, and, if so, whether they constituted fair dealing with the applicants' articles.

The Copyright Act (section 29) provides for three exceptions:

  1. private study, research, education, parody or satire;
  2. criticism or review; and
  3. news reporting.

Only if a court finds that the use of the works follows one of those objectives will it consider whether the dealing is fair, having regard to the following criteria:

  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.5

The two above steps constitute the test for fair dealing.

Justice Duprat then conducted the analysis and rejected the respondents' position. He concluded that their activities did not fall within the exceptions provided for in the Copyright Act. He analyzed the exception relating to news reporting in greater detail, and determined that it did not apply. Cedrom is an important decision, since it is the first decision in Canada to discuss this exception in connection with a media-monitoring service.

Relying on several cases decided in other Canadian provinces and by the Federal Court, the Superior Court ruled that LaDose.pro and Relying on several cases decided in other Canadian provinces and by the Federal Court, the Superior Court ruled that LaDose.pro and LaDose.ca were not reproducing the title and lead in the representation of a news story6 or on an online forum in order to disseminate facts and generate discussion on a particular political subject.7 As summarized by Justice Duprat:

[Our translation] No news, as such, is being reported, nor is there any comment or discussion. In short, the purpose is not to promulgate the facts reported in the article.8

The purpose of LaDose.pro and The purpose of LaDose.pro and LaDose.ca in reproducing the applicants' articles was, rather, to generate revenue.

The Superior Court therefore concluded that media-monitoring activities such as those of LaDose.pro and The Superior Court therefore concluded that media-monitoring activities such as those of LaDose.pro and LaDose.ca do not constitute news reporting within the meaning of the Copyright Act.

This conclusion would have been sufficient for the application to be granted, but Justice Duprat went further in his analysis and reviewed the six factors listed above in order to determine whether the dealing was fair. He concluded:

[Our translation] In the Court's mind, accepting the respondents' position that they were free to use the titles and/or leads and to generate revenues for themselves, without creating any for the applicants, is not fair. The respondents' true motive is to use a business model in which they can obtain the work free of charge and then reproduce it to generate a profit.9

Justice Duprat found that LaDose.pro and  found that LaDose.pro and LaDose.ca were infringing the applicants' copyright and could not benefit from the fair dealing exception for the purpose of news reporting. He confirmed that La Presse, Le Devoir, Le Soleil, and CEDROM-SNi had successfully shown a clear, prima facie case. He also concluded that the activities of LaDose.ca and  case. He also concluded that the activities of LaDose.ca and LaDose.pro violated the terms of use of the publishers' websites, which clearly stated that any use of the content of the websites must be for private purposes only and prohibited any commercial use.

Since the other criteria for issuing an interlocutory injunction were also met, the Court issued the injunction requested and ordered LaDose.pro and Since the other criteria for issuing an interlocutory injunction were also met, the Court issued the injunction requested and ordered LaDose.pro and LaDose.ca to cease reproduction of all or part of the articles prepared by the employees of La Presse, Le Devoir, and Le Soleil.

Lessons

There are three key takeaways from Cedrom:

  • First, following Cedrom, both the lead and the title of an article may be the subject of copyright, and their reproduction may constitute substantial reproduction of the article.
  • Cedrom also clarifies the law on subsection 29(2) of the Copyright Act, particularly as to what is meant by "dealing for the purpose of news reporting", which does not include media-monitoring services such as those of the respondents.
  • In light of this decision, it will be more difficult to claim fair dealing within the meaning of the Act when the dealing is for purely commercial purposes and competes with the activities of the copyright owners and their authorized licensees.

For these reasons, and most probably others that may become apparent in the future, Cedrom will leave its mark on copyright law in Quebec and in the rest of Canada.

Footnotes

1 2017 QCCS 3383 [Cedrom].

2 Cinar Corporation v Robinson, 2013 SCC 73.

3 Following the decision of the Supreme Court in CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13.

4 Cedrom, supra note 1 at para 58.

5 Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2012 SCC 36.

6 Allen v Toronto Star Newspapers Ltd, 36 OR (3d) 201.

7 Warman v Fournier, 2012 FC 803; 395804 Ontario Ltd (Blacklock's Reporter) v Canada (Attorney General), 2016 FC 1255.

8 Cedrom, supra note 1 at para 76.

9 Cedrom, supra note 1 at para 93.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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