Court File No.

A-394-12 and A-395-12 FEDERAL COURT OF APPEAL B E T W E E N: RICHARD WARMAN and NATIONAL POST COMPANY Appellants - and MARK FOURNIER and CONSTANCE FOURNIER Respondents - and THE COMPUTER AND COMMUNICATIONS INDUSTRY ASSOCIATION Intervener - and SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC Intervener SUPPLEMENTARY MEMORANDUM OF FACT AND LAW OF THE APPELLANT, NATIONAL POST COMPANY (RESPONSE TO THE INTERVENERS, THE COMPUTER AND COMMUNICATIONS INDUSTRY ASSOCIATION (CCIA) AND THE SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC (CIPPIC)) CASSELS BROCK & BLACKWELL LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Casey M. Chisick LSUC #: 46572R Tel: 416.869.5403 Fax: 416.644.9326 cchisick@casselsbrock.com Jason Beitchman LSUC #: 56477O Tel: 416.860.2988 Fax: 647.259.7993 jbeitchman@casselsbrock.com Solicitors for the Appellant, National Post Company

TO:

BRAZEAU SELLER LLP Barristers and Solicitors 55 Metcalfe Street Suite 750 Ottawa ON K1P 6L5 James Katz Tel: 613.237.4000 ext. 267 Fax: 613.237.4001 Solicitors for the Appellant, Richard Warman

AND TO:

MARK FOURNIER 2000 Unity Road Elginburg ON K0H 1N0 Tel: Fax: 613.929.9265 609.379.8793

Respondent AND TO: CONSTANCE FOURNIER 2000 Unity Road Elginburg ON K0H 1N0 Tel: Fax: 613.929.9265 609.379.8793

Respondent AND TO: FASKEN MARTINEAU DUMOULIN LLP 55 Metcalfe St., Suite 1300 Ottawa, ON K1P 6L5 Gerald (Jay) Kerr-Wilson Ariel Thomas Tel: 613.236.3882 Fax: 613.230.6423 Solicitors for the Intervener, Computer and Communications Industry Association

3
AND TO: SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC (CIPPIC) University of Ottawa, Faculty of Law 57 Louis Pasteur St., Ottawa ON David Fewer Tamir Israel Tel: 613.562.5800, ext. 2558 Fax: 613.562.5417 Solicitors for the Intervener, CIPPIC

Court File No. A-394-12 and A-395-12 FEDERAL COURT OF APPEAL B E T W E E N: RICHARD WARMAN and NATIONAL POST COMPANY Appellants - and -

MARK FOURNIER and CONSTANCE FOURNIER Respondents - and -

THE COMPUTER AND COMMUNICATIONS INDUSTRY ASSOCIATION Intervener - and -

SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC Intervener

TABLE OF CONTENTS Page No.

THE NATIONAL POST APPELLANTS RESPONSE TO THE INTERVENERS.................. 1 1. 2. THIRD PARTY LIABILITY ISSUES ARE IRRELEVANT ............................................................. 1 SUBSTANTIAL REPRODUCTION ....................................................................................... 2 2.1 Little Disagreement on the Test for Substantial Reproduction ............................... 2 2.2 Protection for Titles is Expressly Contemplated by the Copyright Act .................... 6 2.3 Incorrect Application of the Adverse Effect Factor................................................ 9

2
3. PRECONDITION TO FAIR DEALING: THE SOURCE OF THE W ORK W AS, QUITE SIMPLY, NOT MENTIONED BY THE RESPONDENTS ........................................................................ 9 THE PURPOSE OF REPRODUCING THE KAY W ORK WAS NOT FOR NEWS REPORTING ......... 13 4.1 CCIA Misstates the Evidence in the Record ........................................................ 13 4.2 CCIA Misstates the Issue in this Case ................................................................. 13 4.3 It is Not for the CCIA to Argue the Purpose of the Dealing was Criticism............. 16 5. 6. 7. THE CCIA MISCHARACTERIZES THE FAIRNESS FACTORS ............................................... 16 INFRINGEMENT EACH DAY THE W ORK IS POSTED .......................................................... 20 ORDER SOUGHT ........................................................................................................ 20

4.

THE NATIONAL POST APPELLANTS RESPONSE TO THE INTERVENERS

1. 1.

Third Party Liability Issues are Irrelevant CIPPIC argues that the National Post seeks to impose liability on the respondents

for the independent acts of third party users and that, absent specific knowledge of the infringing act or reproduction, an online platform cannot be held to have either committed or authorized that act. 2. However, in making this argument, the intervener appears to have overlooked the

facts of this case. The excerpt of the Kay Work was posted, and therefore reproduced, by the respondents directly, not by a third party.1 The excerpt appears in a quotation block in the posting on the Free Dominion website, along with an editors note. The National Post understands that Mr. and Ms. Fournier are the moderators and editors of the Free Dominion website and were the editors who made the note. Therefore, as the respondents themselves posted the excerpt of the Kay Work, the issue is one of direct liability for infringement, and not of third party liability. 3. With respect to the full-text reproduction, the respondents did have specific

knowledge of the full-text reproduction effective the day the Kay Work was first posted, within hours of its having been posted on their website.2 Despite this specific knowledge

Reasons for Judgment and Judgment of The Honourable Mr. Justice Rennie, dated June 21, 2012 (the Judgment) at para. 7, Appeal Book, Vol. 1, Tab 3; see also the transcript of the Hearing before Rennie J., Appeal Book, Vol. 4, Tab 14, pp. 1478-1479 (By Ms. Fournier: you can see the exact quote that was in the statement of claim, and that is the exact quote that was put in place of the full article. This was our attempt to immediately limit the amount of dealing in order to deal fairly with the work. [Emphasis added]) 2 Warman Affidavit, Exhibit E, Appeal Book, Vol. 1, Tab 7E, p. 119, and see Appendix A to the National Post Memorandum of Fact and Law dated March 8, 2013. In a post on 02/18/08 at 8:27 pm, the respondent Mark Fournier posted the comment Its gone! This comment presumably refers to the fact that the National Post removed the Kay Work from its website.

-2of an infringing act, the respondents did nothing to remedy the unlawful conduct, thereby, at a minimum, authorizing the infringement. 4. In light of these facts, the bulk of CIPPICs argument in relation to third party

liability is irrelevant and it need not be addressed further. 2. 2.1 5. Substantial Reproduction Little Disagreement on the Test for Substantial Reproduction At paragraphs 17 to 30 of its factum, CIPPIC seeks to establish the uncontroversial

principle that the correct approach to determining whether a work has been infringed is first to determine whether the plaintiffs' work as a whole is original and protected by copyright, and then to inquire whether the part taken by the defendant is substantial.3 The National Post agrees with this proposition, which is amply supported by Canadian authority. 6. However, at the same time, CIPPIC has argued that, if substantial reproduction

were to include excerpts that were not independently original, it would expand copyright control to excessive lengths.4 This is contrary to the principle set out above and suggests that the reproduced excerpts themselves have to be independently original in order for the reproduction to be substantial. 7. There can be no question that the Kay Work is an original work. The question, as

discussed in paragraphs 48 to 50 and 57 to 65 of the National Posts factum, is whether

3

France Animation s.a. c. Robinson, 2011 QCCA 1361 [France Animation] at para. 45, citing TeleDirect (Publications) Inc. v. American Business Information, Inc. [1998] 2 F.C. 22 (FCA) [Tele-Direct] and Ladbroke (Football) Ltd. v. William Hill (Football) Ltd., [1964] 1 All ER 465 [Ladbroke]. 4 CIPPIC Factum at para. 19.

-3the reproduced excerpts relay the essence, the principal features, or the distinct traits of the original work, and whether they have a sufficiently objective similarity to that work. 8. In that regard, the issue in this appeal is whether, having failed to undertake that

analysis, the Application Judge committed a reviewable error. The National Post submits again that, on a correct analysis, there can be no doubt that the reproduced excerpts constitute a substantial part of the Kay Work. 9. Ultimately, despite its assertion that the National Post overstates or seeks to

expand the test for substantial reproduction, CIPPIC appears largely to agree with the National Posts approach to assessing whether a substantial part of a work has been reproduced. 10. CIPPIC agrees with the National Post that whether a reproduction is quantitatively

substantial involves an assessment of the quality of what was taken5 and that a proportionately small amount of copying might be deemed substantial if it includes the essence of the work.6 11. CIPPIC also agrees that, qualitatively, in determining whether a reproduction

constitutes a substantial part, the court is to consider whether the essence of a work is appropriated.7 12. However, CIPPIC mischaracterizes the National Posts argument in a number of

important respects. For example, contrary to paragraph 16 of the CIPPIC factum, the

5 6

National Post Factum, dated March 8, 2013, paras. 50, 53; CIPPIC Factum paras. 14, 15. National Post Factum, para. 54, 56; CIPPIC Factum, para. 14. 7 National Post Factum, para. 48, 57, 58; CIPPIC Factum, paras. 14, 17, 21.

-4National Post does not argue that reproducing any elements of a work constitutes an impermissible amount of copying. Rather, the National Post respectfully submits that it was an error by the Application Judge to enter into a simple calculation of percentages or proportions to determine whether there was a quantitatively substantial reproduction. 13. Further, despite arguing that the National Post has overstated the proper

approach to be taken and introduced new criteria into the substantial reproduction test, CIPPIC does not (nor could it) distinguish any of the authorities the National Post has offered to this Court. 14. The National Post has clearly set out its position on the test for substantial

reproduction in paragraphs 48 to 50 of its factum, relying on principles derived from well-established Canadian case law to demonstrate that, when determining whether a reproduction constitutes a substantial part of a work, the Court is to consider the distinct traits of the original work, whether there is sufficient objective similarity between the reproduction and the original work, and whether the essence or principal features of a work are appropriated.8 15. It is misleading for CIPPIC to suggest that the National Post is attempting either to

reduce the test for substantial reproduction to an assessment of originality, or to argue that any appropriation of skill and judgment amounts to substantial reproduction. Rather, the National Post has argued that, even if a relatively small amount of a work is reproduced, the reproduction may amount to infringement if, qualitatively, it constitutes an appropriation of the skill and time and talent of the creator that reproduces the distinct

National Post Factum at para. 48.

-5traits of the original, such that the essence and the principal features of the work are reproduced.9 That is consistent with the standard articulated in the relevant case law and is precisely what occurred in this case. 16. In that regard, the National Post relies on the following authorities, among others: (a) The plaintiffs copyright may have been infringed despite the fact that only a very small part of the work has been reproduced, if that reproduction constituted an appropriation by the author of the skill and time and talent of the plaintiff (Breen v. Hancock House);10 and an infringing copy is assessed first by its similarities ... even if there are numerous differences in the rest of the copy. Overall the similarities make it possible to determine whether a substantial part of a work has been borrowed (France Animation v. Robinson).11

(b)

17.

Further propositions advanced by CIPPIC are either uncontroversial or irrelevant.

For example, Professor Vavers proposition that two or three seconds from a three-minute recording is a mere particle and so should be outside the copyright owners control12 adds no value to this appeal, in which far more than a mere particle is at issue. 18. Similarly, the proposition that generic words from a catering menu or a single

sentence from a book are not substantial parts of those works is irrelevant for the purposes of this appeal, in which multiple paragraphs of an original work by an eminent

National Post factum, paras. 55 to 57. Breen v Hancock House Publishers Ltd. (1985), 6 CIPR 129 [Breen v Hancock]; see the CIPPIC Factum at para. 18, challenging paragraphs 56 and 61 of the National Post factum. Those paragraphs of the National Post factum cite to the authorities of Breen v. Hancock and France Animation. 11 France Animation at para. 61. 12 CIPPIC Factum at para. 19.
10

-6journalist are at issue.13 Discussions of reproduction in relation to compilations are similarly irrelevant, in which the work at issue is a discrete newspaper article.14 19. Finally, there is no merit to CIPPICs contention that the assessment of factors

including identifiability, similarity, and distinctive traits are not relevant for the purpose of establishing whether a reproduction is substantial. All of these concepts, which are derived from established Canadian copyright jurisprudence, are consistent with, and provide meaning to, the notion of reproducing the essence of a work.15 CIPPIC further errs by suggesting that the essence of a critical article must include some of that criticism.16 There is no such standard at law. 20. CIPPIC also distorts the National Posts argument by suggesting that the appellant

seeks to confer copyright protection to high-level ideas and purposes.17 Rather, what the National Post argues in paragraph 58 of its factum is that the excerpts posted on the respondents website reproduced the essence and principal features of the Kay Work. 2.2 21. Protection for Titles is Expressly Contemplated by the Copyright Act At paragraphs 9 through 11 of its factum, CIPPIC attempts to minimize the

importance of reproducing the headline of the Kay Work along with the excerpted portions from the body of the article.

13 14

CIPPIC Factum at para. 29. CIPPIC Factum at paras. 20, 22. 15 CIPPIC Factum at para. 27, attempting to distinguish the authorities of Atomic Energy of Canada Limited v. AERVA NP Canada Ltd, 2009 FC 980 [Atomic Energy], Prism Hospital Software Inc. v. Hospital Medical Records Institute (1994), 97 BCLR (2d) 201 [Prism Hospital], and U&R Tax Services Ltd. v. H&R Block Canada Inc., [1995] FCJ No. 962 [U&R Tax Services]. 16 CIPPIC Factum at para. 30. 17 CIPPIC Factum at para. 28.

-722. However, as CIPPIC admits, the Copyright Act is clear that copyright protection

extends to the title of that work where such title is original and distinctive. The National Post notes that CIPPIC has taken no position on whether the headline of the Kay Work is original and distinctive. Instead, it has limited its argument to generalized submissions that copyright in titles are afforded limited protection at best, relying on the case of Francis, Day & Hunter,18 a 1939 decision of the Privy Council, on appeal from the Ontario Court of Appeal, which concerned a song titled The Man Who Broke the Bank at Monte Carlo. 23. That case is of limited assistance in this appeal. Francis Day concerned an action

by the owner of copyright in a song, who alleged that a film with the same title infringed copyright. The Privy Council, finding that the title of the song alone was not sufficiently substantial to justify copyright protection, made a point of noting the pronounced differences between the two works that were allegedly in conflict: to an unprejudiced observer no two things could appear more dissimilar than this song and this elaborate motion picture, except for the bare fact that each bears the title The Man Who Broke the Bank at Monte Carlo.19 24. Moreover, while CIPPIC claims erroneously and without reference to authority

that an original string of words, indicative of skill and judgment, can be freely reproduced, it adds that this is so unless it is reproduced alongside a substantial part of the original work.20 That qualification encapsulates precisely the facts of this appeal.

18 19

Francis, Day & Hunter Ltd. v. Twentieth Century Fox Corp. Ltd., [1939] 4 All ER 192 [Francis Day]. Francis Day at 355. 20 CIPPIC Factum at para. 23.

-825. In this appeal, more than just the headline was copied. The headline reproduced

was part of the same work as the other material copied and appeared with that other material both as originally published in the National Post and as later reproduced, without licence or permission, on the respondents website. In this case, the headline, in and of itself, conveys the message and meaning of the entire work and is thus original and distinctive. The phrase Richard Warmans Phony-Racism Industry encapsulates specific, original, and distinct expression that relays the purpose and substance of the article that follows. It is difficult to fathom a title that is more original or more distinctive. 26. CIPPIC relies on another international decision that is of limited value in this

appeal. The Australian Fairfax21 case considered whether specific headlines were substantial parts of works by themselves, not in combination with additional portions of the works that they accompanied. This appeal is not about headlines alone; it is about assessing whether the reproduction of multiple paragraphs of an original work, including its headline, constitutes the reproduction of a substantial part of that work. The Fairfax case, therefore, can be of little assistance to this Court. 27. CIPPIC attempts to argue, again relying on Francis Day, that titles ought to be

given minimal protection in any event. However, the reproduction of a newspaper headline in combination with portions of the article that it accompanies is different from the reproduction of the title of a song, or the title of a film, or the title of a sculpture, without more, for use in a completely different artistic form. The headline of the Kay Work is part of the narrative continuum of that work; it is an essential and integral feature of the newspaper article, not a minimal part.
21

Fairfax Media Publications v. Reed International Books Australia, 2010 FCA 984 (Aust. FCA) [Fairfax].

-92.3 28. Incorrect Application of the Adverse Effect Factor CIPPIC incorrectly states that a given reproduction is less likely to be substantial

if it is unlikely to conflict with the legitimate economic or commercial interests of the rights holder.22 This misapplies the principle on which CIPPIC apparently seeks to rely. 29. A finding that a use adversely affects a rights holders activities might support a

finding that a reproduction is of a substantial part of a work.23 However, the reverse is not true: a finding that a use does not adversely affect a rightsholders activities does not establish that there is no substantial reproduction. Further, CIPPIC cites no authority for the proposition that a finding that there is no adverse affect on a work should be a factor weighed against a finding of substantial reproduction. 30. In any event, CIPPIC is incorrect to assert that the court considered the lack of

any potential conflict between the reproduction in question, and any legitimate economic activity of the author.24 To the contrary, the Application Judge found, and the National Post agrees, that this factor is not directly relevant in this case to the question of substantial reproduction.25 3. Precondition to Fair Dealing: the Source of the Work Was, Quite Simply, Not Mentioned by the Respondents Just as CIPPIC mischaracterizes the National Posts argument in relation to what

31.

constitutes a substantial part of a work and misapprehends the facts of this case, the

22 23

CIPPIC factum at para. 33. U&R Tax Services at para. 35. 24 CIPPIC factum, para. 34. 25 Judgment at para. 26.

- 10 CCIA similarly misrepresents the National Posts position as regards the fair dealing exception and misstates whether the facts of this case support such an exception. 32. Most significantly, the CCIA has failed to demonstrate that the requirement in

section 29.2(a) to name the source and author of a work when using that work for the purpose of news reporting26 was met in this case. Without complying with that requirement, there can be no fair dealing in this case. 33. The requirement to mention the source and author of a work is a statutory

precondition to reliance on the fair dealing exception to copyright infringement in section 29.2 of the Copyright Act. No matter how often or how strenuously the respondents or the interveners may insist that the source of the Kay Work was mentioned, it quite simply was not. 34. It is notable that the CCIA does not address this issue until page 17 of its 20-page

factum. When it finally addresses this issue, it does so in only six paragraphs and cites no case law in support of its argument. Presumably, the CCIA has avoided this issue because its argument has no merit. 35. The CCIA baldly asserts that placing the word SOURCE at the end of the

reproduction of the Kay Work on the freedominion.com website was sufficient to meet the statutory pre-conditions in the Copyright Act.27 That assertion is insufficient for several reasons.

26

The same statutory precondition applies to fair dealing for the purpose of criticism or review; see Copyright Act, s. 29.1(a). 27 CCIA Factum at paras. 76 to 81.

- 11 36. First, the citation to SOURCE appeared only in relation to the full-text

reproduction of the Kay Work. When that reproduction was replaced on the Free Dominion website with the excerpted portion, there was no similar reference to SOURCE, no suggestion of a hyperlink to the National Post website, and no attempt of any kind to credit the National Post as the source.28 37. Second, the CCIAs argument that the use of the word SOURCE and a purported

hyperlink to the National Post website meet the statutory precondition contradicts both the plain words of the statutory requirement to mention the source of a work and the common law interpretation of that requirement. 38. The requirement to mention the source of a work was directly addressed by the

Federal Court in the Michelin29 case. In that decision, the Court noted that the requirement to actively mention the source of a work is not to be lightly skipped over, and mandates that a user must explicitly give the source of the work reproduced if they hope to qualify under the fair dealing exception:
The requirement to actively mention the source and author is there for a reason and not to be lightly skipped over. The need to require the source was added to amendments to the Copyright Act in North American Free Trade Agreement Implementation Act, S.C. 1993, c. 44, subsection 64(1). There is no Canadian case law on what "mention" means but I am in agreement with the plaintiff that it is more than a passive or implicit acknowledgment in parody. According to the Concise Oxford Dictionary of Current English (8th ed. Oxford: Clarendon Press, 1990), mention means "to refer to briefly, to specify by name or to reveal or disclose". When the plaintiff uses the "Bibendum", it gives Michelin as the source. The author or originator is not stated so at the very least the defendants have to explicitly give the source and not the author if they

28

Warman Affidavit, Exhibit G, Appeal Book, Vol. 1, Tab 7G, p. 138; see also Tab B to the National Post Factum, where the excerpt of the Kay Work as posted on the Free Dominion website is reproduced. 29 Compagnie Generale des Establissements Michelin-Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), 1996 CanLii 3920 [Michelin]

- 12 hope to qualify under the fair dealing exception in paragraph 27(2)(a.1) when they use the "Bibendum" design. This they have not done. [Emphasis added.]

39.

The use of the word SOURCE underneath the full-text reproduction of the Kay

Work did not refer to, specify by name, or reveal or disclose the source of the Kay Work. At most, it was a vague invitation to click on a hyperlink to a page that, if viewed, might implicitly disclose that information. 40. Indeed, there is no evidence in the Record of this proceeding that the word

SOURCE was, in fact, a hyperlink to the National Post website.30 Even if a hyperlink did exist, at best using a hyperlink invites the reader to take an active step to discover the source of the work. If the reader chooses not to take that step, he or she may never become aware of the source. 41. The legal standard required the respondents to at the very least explicitly give

the source of the Kay Work. Instead, they provided, at best, a simple passive or implicit acknowledgement, placing the onus on the reader to take further steps to discover the source. Despite the CCIAs insistence to the contrary, that was not sufficient to meet the very clear statutory requirement. 42. That requirement is hardly onerous. Rather, it is a reasonable and minimal

requirement on users of copyright works, intended to afford minimal protection to creators and owners of copyright by ensuring that they are acknowledged and credited for their labour.

30

In the Respondents Memorandum in this Appeal, at paras. 80-81, they baldly state that hyperlinks existed to the National Post website. That alleged fact is not in evidence and was not before Justice Rennie.

- 13 43. The National Post submits that meeting the statutory preconditions is a threshold

issue to the application of a fair dealing exception, whether for news reporting or for criticism or review. If this Honourable Court determines that the statutory precondition was not met, then it is respectfully submitted that it is not necessary to go on and determine whether the use of the Kay Work was otherwise fair. 4. 4.1 44. The Purpose of Reproducing the Kay Work was Not for News Reporting CCIA Misstates the Evidence in the Record In relation to the news reporting exception, the CCIA misrepresents and incorrectly

states the evidence in this case. It argues in paragraph 37 of its factum that there were multiple news items being reported to freedominion.cas readers with the posting of the excerpts of the Kay Work, and goes on to list the multiple news items purportedly reported in the excerpt, including: (a) the fact that the article was published in the National Post; (b) the fact that Richard Warman obtained an exclusive licence to the work in order to restrain its publication; and (c) the fact that Mr. Warman sent a cease-and- desist letter to the Respondents. 45. None of these facts are established by anything in the post on the Free Dominion

website. If these are the news items that were allegedly reported in the post containing the excerpt of the Kay Work, as the CCIA claims, then indeed there was no news reported at all. 4.2 46. CCIA Misstates the Issue in this Case The CCIA has further misstated the issues in this case. Contrary to its argument,

there is no dispute here over whether fair dealing exceptions are to be given a large and

- 14 liberal or generous interpretation. However, even on a large and liberal or generous interpretation, the words of a statute must still be read in their ordinary and grammatical sense and cannot be given meaning that those words cannot bear or given meaning that would create an absurdity. 47. The CCIA suggests that the National Post incorrectly relies on paragraph 54 of

CCH to assess whether a dealing is for an enumerated purpose, instead arguing that this passage from CCH concerns only whether the purpose of that dealing was fair. However, the CCIA offers no alternate interpretation of how the purpose of a dealing should be assessed. In any event, the CCIA is incorrect: paragraph 54 of CCH refers to and is applicable to determine the purpose of a dealing for both the first and second step of the fair dealing analysis.31 48. The CCIA further mischaracterizes the National Posts argument by suggesting

that it argues that the party claiming fair dealing is required to adduce factual evidence of its purpose in using the work. In fact, what the National Post argues is that to establish the real purpose or motive and make an objective assessment of that motive requires some basis in fact. 49. First, there is no doubt that the onus is on the person invoking fair dealing to

satisfy all aspects of the test,32 and therefore any evidentiary burden that exists is on the person invoking the exception. Further, in addition to this onus, the trier of fact must

31

CCH at 54: In Canada, the purpose of the dealing will be fair if it is for one of the allowable purposes under the Copyright Act. As discussed, these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users rights. . 32 Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 at para. 12 [Access Copyright].

- 15 assess, on an objective standard, that a dealing was for an enumerated purpose. To make a finding of fact on an objective standard, therefore, requires some factual evidence, either directly or by inference, a point made in the case of Pfizer v. Apotex, which the CCIA dismisses without proposing an alternative authority:
[109] As stated by Justice Roger Hughes in Novopharm, above at paragraph 57, the test is whether the document at issue is something which, on the evidence, was available to a person skilled in the art or could reasonably be assumed to have knowledge of as of [the priority date] (citation omitted). This is, therefore, an objective standard and requires some factual evidence, either direct or from which an inference may be drawn as to availability.

50.

This is hardly a novel assertion, but is one which the National Post submits is

rather trite. Therefore, not only did the respondents fail to meet their onus, but the Application Judge also erred by failing to make an objective assessment, based on the available facts, of the respondents purpose for using the work at issue. 51. Finally, relying on SOCAN v. Bell, the CCIA argues that users can have more than

one fair dealing purpose at the same time. This is contrary to the above-cited paragraph 54 of CCH, which instructs that courts are to identify the user/defendants real purpose in using a copyrighted work, suggesting that there is one purpose that predominates over others. 52. It is further unclear whether the CCIA makes this point in respect of the first step or

second step of the fairness analysis: the passage cited from SOCAN v Bell for the proposition that an activity can be done for both a fair dealing purpose and non-fair dealing purpose relates to the fairness of the dealing, not the identification of whether a dealing is for an enumerated purpose.

- 16 4.3 53. It is Not for the CCIA to Argue the Purpose of the Dealing was Criticism The CCIA, in paragraphs 38 to 53 of its factum, argues that the use of the Kay

Work was fair dealing for the purposes of criticism. The National Post takes no position on whether the dealing was for the purpose of criticism or review. The issue on this appeal is that the dealing was not for the purpose of news reporting, and that the Application Judge erred in concluding that it was. He never turned him mind to the question of whether the dealing was for the purpose of criticism. 54. It is inappropriate for an intervener on appeal to raise a new argument and ask this

Honourable Court to make new factual findings on an issue not considered by the Application Judge. Indeed, doing so is contrary to the Order of this Honourable Court granting the CCIA leave to intervene, which provided that the interveners may address only issues that have been raised by the parties.33 55. If the Court agrees that the dealing was not for the purpose of news reporting, it

should allow the appeal. If it is concerned that there may be another issue in respect of fair dealing, then it may remit the matter back to the Application Judge with appropriate directions for redetermination on that issue, based on a proper factual record. 5. 56. The CCIA Mischaracterizes the Fairness Factors In addition to mischaracterizing the disputed issue in relation to whether the

dealing with the Kay Work was for an enumerated purpose, the CCIA further mischaracterizes the National Posts argument as to whether the dealing with the Kay

33

Order of Sharlow J.A. dated June 11, 2013, at para. 1(d).

- 17 Work was fair. Each of the fairness factors, and the CCIAs position in respect of them, are dealt with below. 57. Purpose of the Dealing: The CCIAs only submission in relation to this factor is to

argue that there is a distinction between a real purpose and motive and a predominant purpose. That is a distinction without a difference. Further the National Post submits that the CCIAs own focus on the exception for criticism suggests that it agrees that the respondents real purpose or motive was not for news reporting, and that the Application Judge erred in determining that it was so. Accordingly, this factor ought not be weighed in favour of a finding of fairness for the purpose of news reporting. 58. Character of the Dealing: The CCIA again mischaracterizes and misrepresents the

National Posts argument in this regard. In its factum, the National Post argued that, if multiple copies of a work are widely distributed, this will tend to be unfair (per CCH). Citing the fact that the Application Judge considered this factor to support unfairness,34 the National Post noted that there were 35,770 views of the reproduction of the Kay Work,35 which indeed supports a finding of unfairness. The National Post agrees with the CCIA that the Copyright Act should be applied in a technologically neutral manner: by way of example, the National Post submits that distributing 35,770 copies of an infringing paperback book would similarly support a finding of unfairness. 59. Amount of the Dealing: The CCIA argues that the National Post has incorrectly

stated that this factor does not entail a qualitative analysis of the amount used. The

34 35

Judgment at para. 34. Transcript of the Cross-examination of Constance Fournier, dated December 8, 2011, Appeal Book, Vol. 4, Tab 10, p. 1351, Qs. 82-84.

- 18 National Post relies on the Access Copyright decision for the proposition that the amount of the dealing examines the proportion between the excerpted copy and the entire work, not the overall quantity of what is disseminated. 36 This is a quantitative analysis, not a qualitative one, and the Application Judge erred by applying a qualitative analysis under the amount of the dealing factor (which analysis was incorrect in any event). The National Post notes that the CCIA proposes no alternative analysis of this factor and, in any event, does not argue that the amount of the respondents dealing with the Kay Work was fair. 60. Alternatives to the Dealing: The CCIA asserts that it appears from the evidence

that the Respondents purpose in reproducing the relevant excerpts was so that readers would be able to see the actual words that were published.37 The CCIAs position is contradicted by CCH, which held that if a criticism would be equally effective if it did not actually reproduce the copyrighted work it was criticizing, this may weigh against a finding of fairness. The Application Judge correctly found that the respondents could have summarized the Kay Work rather than reproducing it.38 There is no reason why, as an alternative to reproducing the substantial excerpts from Kay Work, the respondents could not have summarized the following facts: (a) Mr. Kay had written an article critical or Mr. Warman, accusing Mr. Warman of using a pseudonym to post a racist message; Mr. Kay argued that this radical anti-racism was horrible, shocking and more harmful than racism itself; and

(b)

36 37

Access Copyright at para. 29. CCIA Factum at para. 70. 38 Judgment at para. 34 (there was arguably an alternative to the dealing, namely providing a summary of the Kay Work instead of reproducing excerpts.).

- 19 (c) Mr. Warman sued over the article claiming that it falsely accuses him of creating hate speech, fabricating racist conduct, and authoring and publishing a racist message.

61.

It is submitted that the reason the respondents did not summarize the Kay Work,

but instead copied excerpts of it verbatim, was to save time and effort and to benefit from and trade on the unique and powerful rhetorical style and creativity of a professional writer. 62. Nature of the Work and Effect of the Dealing: The CCIA is correct that the National

Post did not address either of these factors in its factum. The National Post did not do so because, as CCH instructs, while the fairness factors may be useful and are factors which could be considered, they will not arise in every case of fair dealing. The fairness factors ought not be rigidly applied in governing determinations of fairness, and the National Post submits that these two factors are of limited applicability to a determination of whether the dealing at issue in this case was fair. 63. However, two further misstatements by the CCIA in relation to these two factors

should be addressed. First, in relation to the nature of the dealing, the CCIA suggests that news articles have been traditionally considered to attract thinner copyright protection.39 This is a misstatement of the law: neither CCH nor Tele-Direct, the two cases relied on by CCIA in support of this point, refers to thinner copyright protection for any particular type of work, nor does either case deal with news articles. 64. Second, as regards the effect of the dealing, the CCIA argues that a link that

pointed directly to the original work was provided, thereby mitigating any adverse effect
39

CCIA Factum at para. 72, citing CCH and Tele-Direct.

- 20 on the original work. As discussed above, this is an incorrect statement of fact: there was no link to the National Post website in the posting of the excerpt of the Kay Work, and therefore could be no mitigation of adverse effects. 6. 65. Infringement Each Day the Work is Posted The National Post maintains that the Kay Work was reproduced on the

respondents website each day from February 18, 2008 until April 18, 2010. The reproduction was not removed or destroyed, and therefore it existed at all material times and infringed the appellants copyright during that time. 66. In any event, the CCIA appears to have conceded that the Kay Work was

communicated to the public by telecommunication, another exclusive right under section 3(1) of the Copyright Act.40 Therefore, even if it was not a reproduction each day, the continued posting of the Kay Work was nevertheless an infringing act that cannot be saved by the fair dealing exception. 7. 67. Order Sought The appellant, National Post Company, maintains its request for the relief sought

in its Memorandum of Fact and Law, dated March 8, 2013. ALL OF WHICH IS RESPECTFULLY SUBMITTED this 15th day of August, 2013.

CASSELS BROCK & BLACKWELL LLP Solicitors for the Appellant, National Post Company
40

CCIA Factum at para. 84 (the fact that a user may cause the work to subsequently be communicated to the users web browser, however, is independent of the posting.)

Court File No.: A-394-12 and A-395-12 FEDERAL COURT OF APPEAL

BETWEEN: RICHARD WARMAN and NATIONAL POST COMPANY Appellants - and MARK FOURNIER and CONSTANCE FOURNIER Respondents - and THE COMPUTER AND COMMUNICATIONS INDUSTRY ASSOCIATION Intervener - and SAMUELSON-GLUSHKO CANADIAN INTERNET POLICY AND PUBLIC INTEREST CLINIC Intervener SUPPLEMENTARY MEMORANDUM OF FACT AND LAW OF THE APPELLANT, NATIONAL POST COMPANY (Response to the Interveners, The Computer and Communications Industry Association (CCIA) and The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic (CIPPIC)) (Filed this 15th day of August, 2013) Cassels Brock & Blackwell LLP 2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2 Casey M. Chisick LSUC #: 46572R Tel: 416.869.5403 Fax: 416.644.9326 cchisick@casselsbrock.com Jason Beitchman LSUC #: 56477O Tel: 416.860.2988 Fax: 647.259.7993 jbeitchman@casselsbrock.com Solicitors for the Appellant, National Post Company