News aggregation websites: Fair dealing v. Free riding

There is a growing concern among media companies that news aggregation websites (NAWs) are taking large portions of original content, ‘shaving away potential readers and profiting from the content’ without properly compensating the media companies that provide the original content. 

According to the Canadian Copyright Act, such taking of original content is allowed as long as it does not constitute ‘substantial taking’ from the original work. Although the Act does not define what a ‘substantial taking’ means, courts have usually inquired as to whether the quantity and quality of the reproduced excerpt captured the essence of the original article. The emphasis is more on the quality rather than the quantity taken. Both Canadian and English courts have held that a headline is an unsubstantial part of a work and its taking does not infringe the copyright of the original work (See for example, Shewan v Canada(AG) and Francis Day v. Twentieth Century Fox). Thus NAWs that reproduce only the headline of an article would not infringe the copyright of that article. For example, Stumble is a news aggregating website that might very well fall under this category.

The issue becomes fuzzy when NAWs reproduce not only the headline but also some essential elements of a news article. Such reproduction constitutes a substantial taking of the article. However, such taking could still be legal as long as it falls within the fair dealing provisions of the Copyright Act.  Fair dealing protects five types of taking: taking for the purpose of research or private study (s.29), taking for the purpose of criticism or review (s.29.1) and taking for the purpose of news reporting (s.29.2).

Given the recent judicial treatment of s.29, the issue raised by NAWs is more properly understood as fair dealing for the purpose of research. According to the SCC in CCH Canadian Ltd. v. Law Society of Upper Canada [CCH], NAWs’ takings of original content would be excused under s.29 if two requirements were satisfied:

(1)  NAWs’ dealing with the news excerpts is for the purpose of ‘research’; and

(2)  NAWs’ dealing is fair

(1) NAWs’ dealing with the news excerpts was for the purpose of ‘research’

When analyzing the first requirement, the SCC in CCH made several important observations. Firstly, ‘research’ must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained. Secondly, ‘research’ is not limited to the private context and includes activities done for commercial purposes. Lastly, not only people who do actual research but also people who facilitate the research of others fall under the broad category of ‘research’ under s.29. However, if the so-called ‘facilitators’ were to avail themselves of s.29 then they would have to show that there were sufficient safeguards in place to ensure that the material taken was in fact used for research purposes.

Relying upon these principles, the SCC held that librarians who do not do research but who photocopy copyright materials to facilitate lawyers’ research fall under the liberal interpretation of s. 29. The librarians could avail themselves of s.29 because they could show sufficient safeguards that ensured that lawyers did in fact use the photocopy material for research purposes. The particular safeguard the SCC looked at was the ‘Access Policy’ of the Great Library. According to this policy, before librarians could photocopy certain materials for a lawyer, the lawyer had to specify the purpose for which the materials would be used and the number of copies required. If a lawyer required more than one copy, a librarian could refuse to fulfill the request unless he or she was convinced that all of the copies would be used for research. The Access Policy also specified that a librarian could photocopy only 5% of a secondary source. Thus the SCC concluded that the Access Policy was a sufficient safeguard that ensured that the patrons of the Great Library did in fact use the photocopied material for research purposes.

The Canadian Copyright Board has recently applied the CCH principles and held that websites that provide short previews or excerpts of songs fall under the broad interpretation of ‘research’ under s.29. In particular, the Board held that consumers use such previews to decide whether they would like to buy the full version of a particular song. Websites that provide such previews do not do research themselves. Yet they facilitate the research of consumers and thus fall under s.29. Although these websites did not have an ‘Access Policy’ to ensure that the previews were in fact used for the purpose of research, the Board concluded that these websites had other safeguards that were comparable to the Great Library’s photocopy policy. For examples, previews are streamed and are not exchanged on P2P networks unless they are hacked. Furthermore, the websites offer excerpts of songs that were long enough for the user to do his research, but short enough and of a sufficiently degraded quality that could not replace the complete work.

Analogously, it could be argued that NAWs provide previews or excerpts of news articles that facilitate readers’ research. Such previews help readers decide whether they would like to read the article in full. However, such websites must have sufficient safeguards in place to ensure that users do not use the previews for anything else but research. An essential safeguard is the length of the excerpt taken. For example, a preview that simply triggers the readers’ interest but does not reveal the bottom line of a story would ensure that readers use the excerpt for the purpose of research. This is because the excerpt would not substitute the full story but would only inform the reader as to whether he or she would like to read the full story.

If NAWs’ excerpts are short enough to not be a substitute for the full article but long enough to help readers do their research then a court will conclude that the first requirement of s.29 is satisfied. The court would then move on to the second requirement of s.29, i.e. the fairness of the dealing.

(2) NAWs’ dealing is fair.

In CCH, SCC held that ‘fairness’ should be evaluated according to 6 factors (1) purpose of the dealing, (2) character of the dealing, (3) amount of the dealing, (4) alternatives to the dealing (5) the nature of the work (6) the effects of the dealing on the work.

I have already analyzed three of the factors, namely (1), (3), and (6). In particular, I have already concluded that the amount taken by NAWs would have to be short enough to not be a substitute for the complete article but long enough to allow readers’ research. This amount (Factor (3)) would ensure that the taking is for the purpose of research (Factor (1)) and that it is not a substitute for the original news articles (Factor (6)). Thus these three factors point that the dealing is fair.

It is important to note that when analyzing the alternatives to the dealing (Factor (4)), SCC held that the availability of a license is irrelevant to the fair dealing analysis. In other words, the fact that NAWs could have obtained a license from the providers of the original content does not play any role in the fair dealing analysis. This is important because if a license were seen as a proper alternative to the dealing, this would defeat the purpose of the fair dealing provision. In particular, fair dealing inquires as to what a user could do with a substantial portion of a material without the permission of the owner of that material. If courts required that users of original content ask for permission every time they utilize such content then the fair dealing provision would become useless. For this reason, when courts look at the alternative to the dealing, they would inquire whether the NAWs could have provided the previews without using the original content. It is hard to imagine how NAWs could provide a preview of an article without even making some reference or using some of the original content in that article. Thus Factor (4) also indicates that NAWs deal fairly with the original content.

In conclusion, Canadian Copyright law allows NAWs to take some excerpts from original content. If NAWs simply take the headlines of news articles, there would be no substantial taking from the original article and thus no copyright infringement. If NAWs were to take more than the headline of the article they would have to ensure that the taking is long enough to allow consumers to do their research and yet short enough to not be a substitute of the full article; the dealing with such excerpts would be for the purpose of research and ‘fair’ under s.29.