Warman v. Fournier, 2012 FC 803

Richard Warman, a controversial Ottawa-based lawyer, had gained notoriety in the media for filing defamation lawsuits and complaints under Section 13 of the Canadian Human Rights Act. Mr. Warman filed a copyright claim against the conservative-themed internet discussion board, Free Dominion, when it published a speech he had written, portions of a newspaper article about him, and a photograph from his personal website.

In the case of the speech which Warman himself had prepared, the Federal Court found a prima facia case of copyright infringement, but refused to grant relief on the grounds that the Applicant had known of the alleged defamation for over three years before filing, and was therefore beyond the limitation period for a copyright claim. The court also noted that the Respondents had removed the Warman speech from their server.

The newspaper article, entitled “Jonathan Kay on Richard Warman and Canada’s Phony-Racism Industry,” was highly critical of Mr. Warman and alleged that he had posted racist messages on the internet. Mr. Warman apparently obtained the copyright for this article as part of a legal settlement with the National Post.

Justice Donald Rennie of the Federal Court found that the prevention of republication was the Applicant’s primary rationale for obtaining and attempting to enforce the copyright in question

“[26] Most of the other factors are not directly relevant in this case given the circumstances in which the applicant obtained the copyright: he does not appear to “use” the subject matter of the copyright in the sense of reproducing or publishing the Kay Work. It is a highly critical article about the applicant and it appears he sought the exclusive license to the Kay Work in order to prevent its further publication.”

Justice Rennie declined to grant any remedy in favour of Mr. Warman in relation to the newspaper article, noting that only portions of the article were reproduced on Free Dominion, and only to preserve a factual record of the allegations contained therein:

“[25]           Quantitatively, the reproduction constitutes less than half of the work.  The Kay Work itself consists of a headline and eleven paragraphs.  The reproduction on Free Dominion included the headline, three complete paragraphs and part of a fourth.  Qualitatively, the portions reproduced are the opening “hook” of the article, and the summary of the facts on which the article was based.  Most of the commentary and original thought expressed by the author is not reproduced.

[27]           It does not appear that the excerpts of the Kay Work were reproduced to “save time and effort”.  Based on the context of the posting, the respondents reproduced portions of the Kay Work to preserve a record of the facts summarized in the article, so that members of Free Dominion could continue to discuss those facts on the forum. Also, contrary to the applicant’s argument, the reproduction does include a summary or paraphrase of part of the work, specifically the second paragraph.”

On this basis, Justice Rennie concluded that the Respondents had not published a “substantial part” of the Jonathan Kay article, and that the portions which had been published fell within the scope of fair dealing for the purposes of news reporting.

Finally, the Court denied Mr. Warman’s claim that the republication (by hyperlink) of a photograph from his personal website constituted copyright infringement. This decision was based on the fact that the Respondents did not independently communicate the photograph but merely hyperlinked to it. As soon as Mr. Warman removed the photograph from his own website, the hyperlink was broken and the image on Free Dominion no longer appeared:

“[37]           The evidence is clear that the Barrera Work was posted on the applicant’s personal website and thus the communication of the Barrera Work occurred by creating a hyperlink to the applicant’s own website.  Thus, the applicant authorized communication of the Barrera Work by posting it on his website and therefore there is no infringement.”

The Court ordered costs on Scale B, payable to the Respondents, but declined a request for special costs and/or punitive damages against Mr. Warman in the context of the copyright proceeding. Justice Rennie noted that if the Respondents could prove the copyright action was politically motivated, they may have a separate cause of action for abuse of process. However, he stopped short of making any comment on the merits of such a claim.

Decided by the Federal Court of Canada on June 21, 2012.
Click here for the full text of the decision.

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