Linking is not copyright infringement, Federal Court finds

Danny Titolo, J.D. candidate, Osgoode Hall Law School

By Danny Titolo

Justice Rennie of the Federal Court of Canada recently issued a ruling in the ever so uncertain area of online content. The lawsuit concerned Richard Warman and the National Post against Mark and Constance Fournier. Three claims for copyright infringement were made; two involved articles, one a photograph. All three were dismissed.

Warman is an Ottawa-based lawyer who commonly practices human rights law. He has worked for the Canadian Human Rights Commission (CHRC) and is best known as the primary instigator of actions related to Internet content under section 13(1) of the Canadian Human Rights Act.

Mark and Constance Fournier are lead moderators and former owners of the website, Free Dominion is a Canadian political message board that discusses news and current events from a conservative perspective. Its inspiration came from a similar conservative website in the United States called Free Republic. In fact, there are many members that contribute to both websites. The ideology of the website is described as “Principled Conservatism.”

Richard Warman and the National Post filed a lawsuit against Mark and Constance Fournier claiming that they had content on their website that infringed copyright. One of the main issues raised in this case was the subject of “linking” which involved a photograph of Warman that was posted on his personal website. The photograph was not posted on Free Dominion; however, they did post a link to Warman’s website.

In determining whether or not linking in this case constituted copyright infringement, the Court used the general rule that making a work available on the Internet is authorization of communication by telecommunication. The communication of the work occurred when the hyperlink was posted on Free Dominion. Since Warman authorized the communication of his own photograph by posting it on his website, there can be no infringement. In a sense, the Court is saying that Warman had control over the communication, which is evidenced by the fact that once he removed the photograph, it was no longer accessible on the Free Dominion website. Therefore, the communication was not unauthorized and the claim for infringement must fail.

This is not the first time these parties were the subject of lawsuits. In 2009, Warman and Liberal Party activist, Warren Kinsella, launched defamation lawsuits against Free Dominion and Mark and Constance Fournier. Not only can these recurring lawsuits be considered a right wing vs. left wing battle, it can also be looked at as the struggle between free speech and censorship.

One would certainly expect to see a Liberal-Conservative tug-of-war concerning free speech and censorship; however, the positions taken by the parties in this case are not the ones you would expect. The Liberals, long-time free speech advocates, appear to be on the censorship side, while their Conservative counterparts are fighting tooth and nail in their support for free speech.

An interesting, and albeit unrelated, aspect of this case was representation. Not only did Mark and Constance Fournier succeed in their defence, they did so as unrepresented litigants. Considering the fact that their opponent was a lawyer represented by another lawyer, this was a difficult obstacle to overcome. It would seem that on this occasion the Court was not convinced by clever legal jargon or technicalities, but rather by passion for a worthy cause.

This case has potential implications for individuals that frequently link, blog, and tweet. Although copyright infringement cases such as these are few and far between, the decision demonstrates that Courts are considering the common practices of Internet usage and that linking, in and of itself, should not constitute copyright infringement. Whether or not the Courts will continue on this trend and adapt their rulings to incorporate the frequent changes in technology remains to be determined.

Author Danny Titolo is a JD candidate at Osgoode Hall Law School. His interests include practice areas such as real estate, health, corporate/commercial, and intellectual property. Prior to pursuing his interests in law, Danny obtained undergraduate and graduate degrees in life sciences from the University of Toronto. He has also worked as an analyst and project manager for a major supplier of research and research-backed strategy to businesses, government, banks, and not-for-profit organizations. Danny is a published author in the scientific literature and is a weekly blog contributor at My Legal Briefcase.

Monica Goyal
Monica Goyal
Monica Goyal, Entrepreneur, Lawyer and Innovator is the founder of Aluvion, a legal solutions company offering technology, paralegal and lawyer-driven solutions with a special focus on the quality, cost, and accessibility of legal services for both businesses and individuals. Monica began her career working as an engineer in R&D for companies like Toshiba, Nortel and Nokia while earning her Masters of Engineering at Stanford. Monica's history conditioned her to solve problems in a efficient and tech-savvy manner, an approach she brings with her to legal solutions. Monica currently sits on the Canadian Bar Association's Futures Initiative, and will be teaching a course on Legal Technology at York University’s Osgoode Hall. She was recently named one of 10 Women to Watch in Tech in the Journal of the American Bar Association.

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