Broadcaster’s use of Flickr Photos

When can a TV broadcaster - or any news organization - use Flickr photos?  Flickr is a popular photo-sharing site. People use it to share photos of every description.  The site hosts millions of images.  So when can a news organization download and publish a “newsworthy” picture from Flickr or Facebook, or from any photo-sharing site?  After all, the Copyright Act (Section 29.2) does permit “fair dealing” for the purpose of “news reporting”.

In this case, photographer Joel Charlebois, clashed with Toronto broadcaster CablePulse 24 when the broadcaster copied Charlebois’s pictures from Flickr without his permission. The photographer complained to the Canadian Broadcast Standards Council, and in its decision the CBSC confirmed that the broadcaster was off-side by failing to provide proper attribution – in other words, indicating the name and source of the photos.  The issue was not one of permission but of attribution.  Permission is not necessarily required, but attribution, at a minimum, is.

The pictures capture a failed burglar who tried to escape from a botched break-and-enter, fell two storeys, broke his leg and was arrested. To see the photos: Torontoist Article

Calgary – 10:30 MST

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Online Defamation Update: Doctrine of “presumed publication”

This is the story of online defamation allegations levelled against Yahoo, Google, Wikipedia, MySpace and others by a B.C. man who says he was defamed by certain online postings. We have been following this defamation case since it was initiated (See:earlier post ).

The BC Court of Appeal has now dismissed the appeal relating to Yahoo.  In Crookes v. Yahoo, 2008 BCCA 165, the Court has made it clear that merely alleging that something has been posted on the internet is not, on its own, sufficient to show that publication can be presumed.  In other words, just because it was online, doesn’t mean anyone read it.  This is important because “publication” must be proved in order to win a defamation case.  If there’s no publication, then there can be no defamation. In the case of newspapers and broadcasts, publication is presumed.  The BC Court of Appeal has made it clear that this presumption does not always apply with the internet.

In this case, the allegedly defamatory comments were made on a members-only site, and the court said: “In Wiebe [Wiebe v Bouchard, a 2005 defamation case] significance was attached to the fact the libellous statements were posted on the internet nationwide as well as being made available in the main public library in Victoria.  But they were posted on a Government of Canada website and, as was noted, were made available to everyone in the country who had a computer.  By contrast, the statements that are the subject of Mr. Crookes’ action were posted on a website with restricted access that was not available to the public.  The basis for any presumption that might be said to have been recognized in Wiebe does not exist here.  I do not consider the mere fact a statement was posted on a website with the kind of restricted access there was in this case supports the presumption it was read by anyone in British Columbia.”

This is a helpful step forward in clarifying online defamation law in Canada.

Calgary – 10:45 MST

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Old Fashioned Trade-mark Infringement

I guess this falls under the category of “online law” – the proceedings of the Old Bailey (London’s Central Criminal Court) dating back to the year 1674 are now online.  Here are a few excerpts from trade-mark criminal cases from the 1800s. They’re a great of snapshot of horse-and-buggy intellectual property law:

10th September 1894 Unlawfully selling two bottles of gingerbeer to which a trade mark was falsely applied. A kid was caught recycling gingerbeer bottles by collecting empties, washing them, filling them with his own home-brew gingerbeer, then selling them from a roadside wheelbarrow. The manufacturer nailed him for trade-mark infringement – essentially passing off his homebrew for that of the brandname drink. 

13th January 1896 Falsely applying to 1,080 electric lamp holders a mark so resembling the trade-mark of the Edison and Swan United Electric Light Company as to be calculated to deceive.  A more sophisticated operation involving a scheme to unload counterfeit lamp holders. The verdict: Nine Months’ Imprisonment.  The trade-mark owner is the company run by Edison and Swan – the American and British inventors who owned light-bulb patents, and eventually joined forces after settlement of a patent infringement lawsuit.

Some things never change.  

Calgary - 09:30 MST

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Copyright Law: Two to Watch

First, there has been much debate about when the Tory government in Ottawa will table their revised copyright bill.  In late 2007, draft legislation was pulled amid an unusual groundswell of opposition.  Now, there is renewed speculation that the bill will be introduced before Parliament breaks for the summer (assuming there is no election in the meantime).  If it is introduced, the bill will head into a thorough committee review, meaning the bill wouldn’t likely become law until sometime next year. 

Second, the QuebecTorrent case (a lawsuit by the canadian recording industry against an online file-sharing site) is reportedly scheduled to go to trial this summer. (Earlier post here.) If it proceeds through to a court decision, it will be a potentially landmark case for online copyright law in Canada, and it will be interesting to see how it dovetails with the proposed copyright legislation.  In the US, a decision released Monday (Atlantic Recording Corp. v Howell) is a setback for the anti-file-sharing efforts of the US recording industry.  In that decision, the court stated that copyright is not infringed unless there is actual distribution of an unauthorized copy of the work: “Merely making an unauthorized copy of a copyrighted work available to the public does not violate a copyright holder’s exclusive right of distribution.”  This is significant since loading a file onto a shared folder is “making available”, and according to this decision, such an act on its own does not constitute infringement. 


Calgary – 10:30 MST