Canada

IP Osgoode alerts us to an interesting decision from the Court of Appeal for British Columbia that has important implications for online speech in Canada.  In an opinion issued earlier this month, the Canadian court held that Jon Newton of p2pnet news could not be held liable for linking to allegedly defamatory articles written by others about politician Wayne Crookes. The appellate ruling upheld a lower court decision last fall dismissing Crookes' case against Newton.

In much the way CMLP often does, in 2006 Newton published a blog post about a defamation lawsuit brought by Crookes against Michael Pilling, who runs OpenPolitics.ca.  In his post about the lawsuit, Newton linked to the allegedly defamatory articles in question on OpenPolitics.ca, as well as to an article posted on another website.  Newton did not reproduce or comment on any of the allegedly defamatory material.  Here's the important passage:   read more »

Over the past few weeks everyone at the CMLP and Harvard's Cyberlaw Clinic (with whom we share an office) has been focused on the question of what legal protections courts should apply to anonymous speech (see this post about our amicus participation in the Maxon v. Ottawa Publishing case).  When you are immersed in an issue like this, it is easy to forget how lucky we are to live in a country that has robust protections for speech.

In a post earlier this week, University of Ottawa law professor Michael Geist reminds us that our neighbor to the north is grappling with this same issue, but has come up with a very different answer.  In his post, Geist reports that an Ontario court has ordered the operators of the right-wing Canadian forum site, FreeDominion.ca, to turn over personally identifying information for eight anonymous posters to the site.   read more »

Michael Geist points the way to an interesting Vancouver Sun article, reporting on the B.C. provincial government's inclusion of copyright notices in packets of documents turned over to journalists under B.C.'s Freedom of Information and Privacy Protection Act, a Canadian analog of our state FOI laws. Stanley Tromp, writing for the Sun, explains:

Soon afterward, I was perplexed to receive "notices" slipped inside packages of documents mailed to me in response to some of my FOI requests. These letters warned me that: "These records are protected by copyright under the federal Copyright Act, pursuant to which unauthorized reproduction of works is forbidden."

If I wanted to redistribute even a portion of these records, I would have to send a special request (which could be denied) to the IPP, and also pay up. The implicit threat that I could be sued for non-compliance was clear.

The notion that the media may not inform readers of harms to the public interest without first pleading for the state's permission and paying a copyright fee is deeply troubling.

After several years of this process, I complained to B.C.'s information and privacy commissioner, David Loukidelis, an inquiry was begun, and a ruling is expected.   read more »

Giuseppina D'Agostino, a law professor at Osgoode Hall Law School in Toronto, has a new paper coming out entitled "Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use." Here is the abstract:

As a result of the March 4, 2004 Supreme Court of Canada decision in CCH Canadian Ltd v Law Society of Upper Canada for the first time in Canadian copyright history, the court determined that Canadian law must recognize a "user right" to carry on exceptions generally and fair dealing in particular. This paper compares the Canadian fair dealing legislation and jurisprudence to that of the UK and the US. It is observed that because of CCH, the Canadian common law fair dealing factors are more flexible than those entrenched in the US. For the UK, certain criteria have emerged from the caselaw consonant to Canada's pre-CCH framework and in many ways there is now a hierarchy of factors with market considerations at the fore.

The real differences, however, ultimately lie in the policy preoccupations held by the respective courts, with Canada's top court alone concerned in championing user rights above all other rights. The paper concludes that Canadian fair dealing does not require too much healing but would benefit from some remedies outside (and complimentary to) the law and the courts. While doing nothing does not seem to be the appropriate response, legal intervention as many advocate may not be warranted either. Rather than, or at the very least together with, reforming the law, establishing fair dealing best practices is most promising. The parties directly affected in a specific industry can together develop these guidelines to ultimately aid in clearer and ongoing fairer fair dealing decision-making in the courts. It is here that US initiatives can serve as most fruitful to emulate.

It's nice to see some scholarly attention paid to the differences between the Canadian, U.K., and U.S. approaches to this important subject.

You can download the entire article from the Social Science Research Network.   read more »