Trend Hunters – Recent Developments in the Attribution Requirement for “News Reporting”.
October 22, 2021
By: François Larose, Naomi Zener, Tamara Céline Winegust and Mitchel Fleming
For the second time in 2021, the Federal Court has weighed in on the attribution requirements for a dealing to qualify as “fair” in the context of news reporting. First in Canadian Broadcasting Corporation v. Conservative Party of Canada, 2021 FC 425, (CBC) and now in Stross v. Trend Hunter Inc., 2021 FC 955, (Stross 2021) the Courts’ decisions suggest a degree of flexibility will be applied to the requirements of section 29.2 of the Canadian Copyright Act, RSC 1985 c. C-42, but that there are limits to that flexibility.
Section 29.2 establishes that to qualify as “fair dealing” for the purposes of news reporting, the user must mention (a) the source, and (b) the creator — i.e., the author of the work, performer of the performance, maker of the sound recording, or broadcaster of the communication signal. The Courts’ reasoning in each of CBC and Stross 2021 suggests there may be instances where a user who reproduces others’ work for the purposes of news reporting may be excused even if the source and creator of that used work is not squarely identified; however, they do so at their own peril.
CBC, which we discussed here, involved the unauthorized copying of parts of the Canadian Broadcasting Corporation’s broadcasts by the Conservative Party of Canada (CPC) for use in the CPC’s campaign advertising materials. In that case, the Federal Court took a “large and liberal” interpretive approach and found that the display of the source broadcaster’s logo in some of the copied clips, and an “easily recognized core program site” and “TV personality” in others was sufficient to meet the source requirements of section 29.2.
By contrast, in Stross 2021, which involved unauthorized use of the plaintiff’s photographs, the Federal Court determined that mentioning the name of the source from which the work in question was copied (in this case, online articles where the photographs were originally published) would satisfy the “source” requirement under section 29.2. However, the provision of hyperlinks to those source online articles where the author was identified, did not meet the second attribution requirement—i.e., that the name of the author of the work be identified as part of the dealing. It was not enough for the author attribution information to be readily available with minimum research. Consequently, the dealing did not meet the requirement of section 29.2, and was not “fair”.
Together, CBC and Stross 2021, provide some guidance as to how far users seeking to rely on the fair dealing of “news reporting” must go to satisfy attribution. They suggest that where the identity of the creator of the work in question is readily inferable from the source identified as part of the dealing, a court may be prepared to find that the two attribution requirements for “news reporting” are met. However, where additional research is needed—for example, navigating to a different website or source—the attribution requirements are not satisfied, even where the route to that additional information is clearly set out for the reader or viewer of the news report.
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