Thursday, June 28, 2012

TECHDIRT "Canadian Court Issues Triple-Whammy Ruling In Favor Of Free Speech And Commentary Online" (Richard Warman vs Mark & Connie Fournier)

 

Here is an interesting article from the website TechDirt on a recent Federal Court decision stemming from a copyright suit filed by serial complainant Richard Warman against Mark and Connie Fournier of FreeDominion.

 

 

 

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Canadian Court Issues Triple-Whammy Ruling In Favor Of Free Speech And Commentary Online

from the fair-dealing dept

Close on the heels of Canada's recent copyright reform bill (which despite significant problems also contains some fantastic language that carves out important new exceptions to copyright) the Federal Court of Canada has issued a significant ruling that answers some key questions about copyright online. The decision is in a lawsuit filed by Richard Warman and the National Post against the operator of a forum, and looks at two main points: the right to quote news articles, and the right to link to a photo. On the first question, the court made it clear that even a several-paragraph quote is protected, on not just one but two levels:

While the first claim (Warman's article) was dismissed on the basis that it took too long to file the lawsuit, the legal analysis on the National Post claim involving an article by Jonathan Kay assesses the copyright implications of posting several paragraphs from an article online. In this case, the article was 11 paragraphs long. The reproduction on the Free Dominion site included the headline, three complete paragraphs and part of a fourth. The court ruled that this amount of copying did not constitute a "substantial part" of the work and therefore there was no infringement. The court added that in the alternative, the reproduction of the work was covered by fair dealing, concluding that a large and liberal interpretation of news reporting would include posts to the discussion forum. The decision then includes an analysis of the six factor test and concludes that the use was fair.

Both aspects of that part of the ruling are clear and could have a huge impact on copyright licensing in Canada.

On the subject of linking to a photo, the decision lays down a third important standard, and is again unequivocal about doing so:

The third claim involved a link to a photograph posted on the photographer's site. The court had no trouble concluding that the link was not copyright infringement, rightly noting that the photographer authorized the communication of the work by posting it on his website. This finding should put an end to claims that linking to copyright materials somehow raises potential legal risks. The Supreme Court of Canada has already ruled against attributing defamation to such links and now the Federal Court has concluded that links cannot be said to constitute unauthorized communication and therefore infringement.

To many of us, that's just common sense: putting something on the internet constitutes a public invitation to link to it. But for years, time and time again we've seen courts and companies around the world attempt to claim that linking is infringement, or otherwise not allowed. And, indeed, this also has serious implications for the Access Copyright agreement, which has schools paying licensing fees and obeying rules for linking to material, despite it becoming clearer and clearer that copyright does not cover these activities.

All told, this is an excellent decision, and offers further proof that Canada has the very real potential to move copyright law in a positive direction. There are still lots of battles to be fought, but there's also a genuine emphasis on the rights of users (especially in the courts) that can hopefully be harnessed and nurtured more and more over time.

 

 

 

See the full article at: http://www.techdirt.com/articles/20120626/09551619491/canadian-court-issues-triple-whammy-ruling-favor-free-speech-commentary-online.shtml

 

 

 

 

 

 

 

Thursday, June 7, 2012

NATIONAL POST: Good riddance to Section 13 of the Canadian Human Rights Act


Interesting editorial in today’s National Post by Jonathan Kay, a longtime critic of Section 13 censorship and the fanatical Canadian Human Rights Commission.

Here are some excepts from the editorial.  The full article can be read at: http://fullcomment.nationalpost.com/2012/06/07/jonathan-kay-good-riddance-to-section-13-of-the-canadian-human-rights-act  

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National Post | June 7, 2012

Jonathan Kay: Good riddance to Section 13 of the Canadian Human Rights Act

Five years ago, during testimony in the case of Warman v. Lemire, Canadian Human Rights Commission (CHRC) investigator Dean Steacy was asked “What value do you give freedom of speech when you investigate?” His response: “Freedom of speech is an American concept, so I don’t give it any value.”

That was then. Now, Section 13 of the Canadian Human Rights Act, the enabling legislation that permits federal human-rights complaints regarding “the communication of hate messages by telephone or on the Internet,” is doomed. On Wednesday, the federal Conservatives voted to repeal it on a largely party-line vote — by a margin of 153 to 136 — through a private member’s bill introduced by Alberta Conservative MP Brian Storseth. Following royal assent, and a one-year phase-in period, Section 13 will be history.

In 2006, most notably, many Canadians were shocked when Maclean‘s magazine was dragged before Canada’s human-rights apparatus, and forced to justify its decision to publish an allegedly Islamophobic excerpt from a book by Mark Steyn. Till that point in time, it was casually assumed that anyone caught up in human-rights quasi-litigation was a fringe commentator scribbling out unfashionable, retrograde views on race-mixing, or the Jewish “bacillus,” or some such. But Mr. Steyn was an internationally acclaimed commentator writing on a real, modern threat that, in its most virulent form, had destroyed a large chunk of Manhattan, and which our troops were fighting against in Afghanistan.
The second factor that turned the tide against the human-rights industry was the blogosphere.
Till the middle part of the last decade, the Canadian punditariat was dominated by professional columnists who were socially, ideologically, and sometimes professionally, beholden to the academics, politicians, and old-school activists (from Jewish groups, in particular) who’d championed the human-rights industry since its inception in the 1960s. But in the latter years of Liberal governance, a vigorous network of right-wing bloggers, led by Ezra Levant, began publicizing the worst abuses of human-rights mandarins, including the aforementioned Dean Steacy. In absolute numbers, the readership of their blogs was small at first. But their existence had the critical function of building up a sense of civil society among anti-speech-code activists, who gradually pulled the mainstream media along with them. In this sense, Mr. Levant deserves to be recognized as one of the most influential activists in modern Canadian history.

Canada’s human-rights law is a product of the 1960s, when much of our society truly was shot through with bigotry and prejudice. Those days are gone, thankfully, and laws such as the Canadian Human Rights Act now comprise a greater threat to our liberty than the harms they were meant to address. The repeal of Section 13 of the CHRA represents a good, albeit belated, first step at reform. Let us hope it provides suitable inspiration for Mr. Storseth’s principled counterparts in provincial legislatures across the country.


[VIDEO] Final vote on Bill C-304 in Canada's Parliament to scrap Section 13


June 6th, 2012. Vote in Canada's Parliament on Bill C-304. Bill C-304 is landmark legislation, which will see the censorship powers (Section 13) stripped from the fanatics at the Canadian Human Rights Commission.



Statement on Private Member's Bill C-304 by MP Brian Storseth in the House of Commons, calling on MPs to vote for freedom of expression by repealing Section 13.

WHOO HOO! Conservative government votes to repeal sections on hate speech from human rights code!

Section 13 censorship takes another step towards oblivion.   http://www.StopSection13.com

 

 

Canada.com has the breaking story….

 

 

Conservative government votes to repeal sections on hate speech from human rights code

By Jason Fekete
Postmedia News

OTTAWA — The Conservative government voted late Wednesday to repeal controversial sections of the Canadian Human Rights Act banning hate speech over the telephone or Internet.

In a vote of 153 to 136, the majority Harper government supported a private member’s bill from Alberta Conservative MP Brian Storseth that would scrap Section 13 of the human rights code, which deals with complaints regarding “the communication of hate messages by telephone or on the Internet.”

Storseth argues the current human rights code fails to protect freedom of speech, which is guaranteed under the Charter of Rights and Freedoms, and believes Canadians are better off if the government repeals sections 13 and 54 — the latter section dealing with associated penalties.

“At every stage, the Conservative caucus has voted for it,” Storseth, a backbencher, said Wednesday in an interview before the vote on third and final reading in the House of Commons.

“I’m looking forward to continuing to have Conservative caucus support.”

Senior cabinet ministers supported the bill during the free vote and the results generated loud applause from Conservative MPs. Prime Minister Stephen Harper is overseas and wasn’t present for the vote. Most opposition politicians voted against the bill, although Newfoundland and Labrador Liberal MP Scott Simms supported it.

Storseth said the current human rights code allows too many frivolous cases to proceed against citizens, when the Criminal Code already covers hate speech that could generate harm against an individual or group.

Acts of hate speech are serious crimes that should be investigated by police officers, not civil servants, he said, and the cases should be handled by “real judges and real lawyers,” instead of a quasi-judicial body like the human rights commission.

Storseth said he has also been speaking with colleagues in the Conservative-dominated Senate in hopes of it quickly receiving royal assent. The bill contains a one-year implementation period.

See the full article at:

http://blogs.canada.com/2012/06/06/harper-government-votes-to-repeal-sections-on-hate-speech-from-human-rights-code/

 

 

 

 

Wednesday, June 6, 2012

Final Vote on Bill C-304 in Parliament today! Section 13 is almost dead


Conservative MP Brian Storseth’s private members bill – C-304 “An Act to amend the Canadian Human Rights Act (protecting freedom)” is going to third reading this afternoon in the House of Parliament.  This bill will see the end to the censorship powers of the fanatical Canadian Human Rights Commission, who have been on a mad tear to silence internet websites, bloggers, message board owners, writers and others.

The Conservative party has already thrown their support behind the bill, and it is expected to pass third reading with no problems.  After passing third reading, the bill is sent to the Senate of Canada, who will again debate the bill. 



You can watch the House of Commons live on the internet at http://parlvu.parl.gc.ca/parlvu/


Here is a story from today’s Edmonton Journal discussing Bill C-304:


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Vote to repeal powers to ban hate speech expected


By Jason Fekete, Postmedia News
June 6, 2012

OTTAWA — The Conservative government is expected to vote Wednesday in support of a private member's bill that would repeal controversial sections of the Canadian Human Rights Act banning hate speech over the telephone or Internet.
The bill from Alberta Conservative MP Brian Storseth would scrap Section 13 of the human rights code, which deals with complaints regarding "the communication of hate messages by telephone or on the Internet."
Storseth argues the current human rights code fails to protect freedom of speech, which is guaranteed under the Charter of Rights and Freedoms, and believes Canadians are better off if the government repeals sections 13 and 54 — the latter section dealing with associated penalties.
"We've got the support of the Conservative caucus," Storseth, a backbencher, said in an interview before the vote, expected late Wednesday. "I'm looking forward to continuing to have Conservative caucus support."
He said the current human rights code allows too many frivolous cases to proceed against citizens, when the Criminal Code already covers hate speech that could generate harm against an individual or group.
Acts of hate speech are serious crimes that should be investigated by police officers, not civil servants, he said, and the cases should be handled by "real judges and real lawyers," instead of a quasi-judicial body like the human rights commission.
Expecting the bill will pass through the House of Commons, Storseth said he has also been speaking with colleagues in the Conservative-dominated Senate in hopes of it quickly receiving royal assent. The bill, should it be approved by Parliament, contains a one-year implementation period.
The Canadian Human Rights Commission says it received 1,914 complaints last year, but has received only three hate speech complaints since 2009. Two of those three complaints were dismissed and one is currently being examined by the quasi-judicial body.
….  [bolding added to article]