Fair dealing allows use of copyrighted work

Copyright exceptions allow limited copying for specific purposes. Some exceptions require the person copying to mention the source and author. A question that comes up is whether a hyperlink to the source satisfies those requirements. The answer, based on some recent cases, is it depends.

Canada’s copyright laws are relatively clear: Do not use another person’s original creative or artistic work without their permission. A basic principle of the Copyright Act is that creators of works ultimately decide how their work is used and who can use it.

But of course, nothing is quite that simple. The “fair dealing” exceptions in the Copyright Act give some leeway to copying without permission. The purpose of these exceptions is to strike a balance between ensuring creators have exclusive rights over their original creations and allowing the general public to benefit from those creations without incurring undue bureaucratic or financial hardship.

Fair dealing exceptions

Fair dealing exceptions set out in section 29 of the Copyright Act recognize that people who want to use a copyrighted work without the creator’s permission have some rights to do so. If someone is using a copyrighted work for research, private study, education, parody, or satire, then it will likely be subject to the fair dealing exception, and no copyright infringement will be found.

We should point out that this assumes the use is fair and not excessive. The 2004 CCH case set out tests to decide where the “fair” line is drawn.

Those fair dealing exceptions don’t require any attribution. However, there are two other fair dealing exceptions — criticism or review, and news reporting — that are only allowed if the user mentions the source and the author, performer, maker, or broadcaster depending on what is being copied.

The Copyright Act does not explain how to properly attribute a piece of work to its creator. Given modern realities, it would be logical to think a link or other method might be sufficient.

Recent cases help clarify what will meet the test.

This was an issue the Conservative Party of Canada experienced in the 2021 case Canadian Broadcasting Corporation v. Conservative Party of Canada. In a political advertisement, the Conservative Party used brief clips from CBC news reports without obtaining the CBC’s consent. The CBC sued the Conservative Party for copyright infringement. The Court ultimately ruled in favour of the Conservative Party, holding that its use of the CBC’s clips fell under the fair dealing exception.

However, in the recent decision of Stross v. Trend Hunter Inc., the Court came to a different conclusion. In this case, photographer Stross sued Trend Hunter Inc. on the grounds that Trend Hunter Inc. incorporated several of his original photographs on its website without Stross’ permission. Unlike in the CBC case, the Court in Stross determined that Trend Hunter Inc. had infringed copyright and that their use of the photographs did not fall under the fair dealing exception.

Does linking satisfy the attribution requirement?

So why did the Court in the CBC case determine the Conservative Party’s use of CBC’s original clips did fall under the fair dealing exception, but the Court in Stross determined Trend Hunter Inc.’s use of Stross’ photographs on its website did not? The answer comes down to the Copyright Act attribution requirement.

The Court concluded in the CBC case that, while it was clear the Conservative Party used a substantial portion of the CBC’s work in their political advertisement without CBC’s permission, the CBC maintained its ownership over the clips “by having its name, logo, and/or brand appearing on the clips clearly and repeatedly.” In other words, a “reasonably informed watcher” would be able to view the clips presented in the political advertisement and easily attribute the clips as the property of CBC. The CBC logo was clearly displayed on the screen, and the Conservative Party made no efforts to hide this fact. Thus, the attribution requirements of mentioning the source (CBC news) and the broadcaster (CBC) were satisfied.

In Stross, Trend Hunters Inc. argued that they satisfied the attribution requirements of mentioning the source and author because they linked the photographs to the source website where the Stross name was credited as the photographer. The Court did not agree. It determined that merely linking the source did not satisfy the second attribution requirement. Unlike CBC, a viewer would not know the photographs on the Trend Hunters Inc. website belonged to Stross simply by viewing the images. To determine ownership, they had to go further and be redirected to Stross’ website, where he was credited as the photographer and thus owner of the photographs.

If the source and author, performer, maker, or broadcaster are clearly visible and identifiable at first glance by the viewer, it appears that the attribution requirements of the fair dealing exception will be met. Stross, however, tells us that while linking to the source may satisfy the first attribution requirement, it is unlikely to meet the second.

So if you want to copy something and rely on the criticism or review, or news reporting fair dealing exceptions, you can link directly to the source, but the safe approach is to mention the author, performer, maker, or broadcaster directly.

Katie Warwick is an associate with Employment Law and Human Rights group.

David Canton is a business lawyer and trademark agent at Harrison Pensa with a practice focusing on technology, privacy law, technology companies and intellectual property. Connect with David on LinkedIn and Twitter.

Image credit: ©dizain – stock.adobe.com