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Court declines to apply fair dealing copyright exemption in news reporting case

copyrightIn a recent decision, the Small Claims Division of the Court of Québec has found a newspaper liable for infringement of copyright and moral rights in photographs published without reference to the photographer.

In Saad c Le Journal de Montréal, 2017 QCCQ 122, the plaintiff, a professional photographer, brought infringement proceedings against the Journal de Montreal for publishing two of his photographs without appropriate permission or crediting. The defendant used the photographs to illustrate print and online versions of an article relating to the photographs’ subject. The Journal had obtained the authorization of the subject, on whose Facebook page the photographs appeared along with a notice identifying them as the work of the plaintiff. However, the defendant did not make inquiries as to whether the subject was able to authorize reproduction of the photographs, and neither sought the plaintiff’s permission nor credited the plaintiff as the photographer.

The Court held that the defendant had failed to exercise due diligence – and in fact demonstrated wilful blindness – in reproducing the photographs without seeking or obtaining a license from the plaintiff. The Court further found that the use of the photographs did not constitute fair dealing for the purpose of news reporting within the meaning of section 29.2 of the Copyright Act, notwithstanding that the photographs were used to accompany a newspaper article.

In Canada, the Copyright Act provides that fair dealing for the purpose of research, private study, education, parody, satire, criticism, review, or news reporting does not infringe copyright. Whether reproduction of a work constitutes fair dealing, even if used for an allowable purpose, will depend on the facts of each individual case. The application of the legal test can be complex depending on the circumstances. Relevant factors include the purpose of the dealing, the character of the dealing, the amount of the dealing, the availability of alternatives, the nature of the work, and the effect of the dealing on the work.

In the circumstances of the Saad case, the fair dealing exemption was not available to the Journal de Montreal since the photographs appeared without reference to their source or the name of their author (i.e. the plaintiff), as required by section 29.2 of the Copyright Act. The Court further noted that the use of the photographs was merely incidental to the story such that their reproduction was not necessary to the news report.

The decision in Saad highlights the need to be diligent in identifying ownership of copyright and moral rights prior to reproducing artistic works, including photographs, as well as properly attributing the work. In particular, users should be mindful that content copied from social media platforms or third-party sources may not belong to their original posters and reasonable steps may need to be taken to obtain authorization from rights holders. Further, the determination of whether a particular use of an artistic work qualifies for the fair dealing exemption under the Copyright Act is a fact-specific exercise, and legal counsel should be sought in cases of uncertainty.

By Stéphane E. Caron, Partner and Julia Werneburg, Associate, Gowling WLG International Limited 

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