When a popular iPad app aggregates news articles and re-packages them for reading on the iPad, is it copyright infringement?

The Washington Post and a dozen other media companies would say yes.  Zite, the Canadian app developer, argues the content is aggregated in much the same way that Google and other search engines crawl and index web content. Is there a difference between the two?  This is reminiscent of the early days of internet copyright disputes (in 1997), when the Washington Post and other media companies sued Total News Inc. for aggregating and framing news articles on the Total News webpage. The Washington Post had the same complaint as they now have with the Zite app: namely, that ads are removed or obstructed in the process, and the media company’s ad revenue is threatened. 

Other US lawsuits have established that certain types of framing, such as the reproduction of thumbnail images, can be excused as “fair use”. Google successfully raised this defence in the US decision in Perfect 10, Inc. v. Amazon.com, Inc. [PDF] based on the “transformative” nature of the copying. 

Calgary – 07:00 MDT

 

For Canadians who are following the copyright reform story, here are are a few updates:

• Bill C-32 (the hotly debated proposal for amendments to the Copyright Act) has now died on the vine. When the government was defeated and Parliament was dissolved, all pending legislation fell off the order paper, including Bill C-32. The next Parliament is likely to take this issue up, but the timing and approach will depend on who forms government. 
• While legislative reform idles, the Supreme Court of Canada (SCC) is carrying on.  The SCC has agreed to hear several major cases that will impact copyright law in Canada.
• First the appeal in Entertainment Software Association (ESAC) et al. v. Society of Composers and Authors and Music Publishers of Canada (SOCAN) will address the use of music in video games. SOCAN (the organization responsible for collecting copyright royalties) asserts that royalties should apply to video games that incorporate copyright-protected music
• Another SOCAN case is Rogers Communications Inc. v. SOCAN, and will also deal with royalties applicable to online music sales. 
• A third SOCAN case (SOCAN v. Bell Canada ) will also be heard, dealing with the interpretation of the word “research” and whether 30-second song previews qualify as “fair dealing” for the purpose of the research and private study exception under the Copyright Act.

Related Event: Copyright Reform is Dead…. Long Live Copyright Reform!! For details and registration, please see the invitation.

Photo Credit: Renjith Krishnan

Calgary – 07:00 MDT

 

What do you get when you photograph someone else’s photograph? German photographer Michael Wolf received honorable mention in this year’s World Press Photo Contest for a series of images from Google Street View. He scrolled / strolled through Street View in different cities, and photographed scenes that he came upon. Let’s leave aside the question of whether this qualifies as art or photojournalism (maybe it’s both), and look at the copyright issue. Can a photograph of another image be protected by copyright or is it an infringement of the copyright in the original work?

The Quebec Superior Court in Ateliers Tango Argentin Inc. v. Festival d’Espagne et d’Amerique Latine Inc., (1997), 84 C. P. R. (3d) 56, dealt with a staged reproduction of a photo, rather than a photo of a photo. In that case, the defendant reproduced a photograph – same location, same angle, same layout of the same subject matter. The court decided that this infringed the copyright in the original photograph. Applying this reasoning, a photo of a photo could easily be an infringement.

In a 1999 US case, the court considered whether a copy of a photograph of a painting would infringe copyright.  Someone had taken photos that were exact replicas of paintings.  Copyright in the paintings had already expired at the time the photos were taken. The court decided that the photos are not themselves protected by copyright because they lack originality – an essential ingredient of copyright. So, copying those photos was not an infringement of copyright: Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999).

The image above? It’s not one of Mr. Wolf’s works – this one is my own image, snapped from Google Street View, right outside Field’s Calgary office. (If you look closely, you can see Google’s copyright notation on Calgary’s summer sky.)

Calgary – 07:00 MST