Epiq Systems, Inc.
Intellectual Property

Case helps define line between aggregating and copying content

A recent U.S. court ruling in favour of a major news agency in a copyright lawsuit has helped to draw the line between aggregating news content and simply copying it for competitive purposes, says Toronto IP lawyer John Simpson.

According to the Financial Post, a U.S. federal judge ruled for The Associated Press in a recent lawsuit challenging the use of excerpts from its articles by the Meltwater News Service. AP sued Meltwater, which monitors the media for corporate customers, last year, “alleging that it copies AP content and sells it to clients without paying AP licensing fees,” say reports.

Simpson, who calls this an important case for the news industry as a whole, says he was happy to see the court stand up for the rights of news publishers when it comes to their online content.

“Technologically, it has become so easy to aggregate and repackage valuable news content without having to make the same kind of investments that news publishers have to make to create it in the first place. I think the court was very thorough in rejecting Meltwater’s fair use defence which was that it performs the same function as an Internet search engine,” he says.

“A clear line needs to be drawn between aggregating and organizing online information on the one hand and simply copying original expressive content on the other. I think this decision goes a long way towards drawing that line,” he adds.

According to reports, a similar lawsuit against Meltwater was started in June 2011 by a group of Canadian news publishers, alleging copyright infringement.

How far the Canadian action proceeds will probably depend on how things are ultimately resolved on appeal in the U.S. and elsewhere in the world, says Simpson.

“If the Canadian action ever gets before a court on its merits, I’m sure the court will pay close attention to the U.S. decision. 'Fair use,' which was Meltwater’s principal defence in the U.S. is very similar to 'fair dealing' in Canada. But there are some differences. Generally speaking, 'users’ rights' are broader in Canada than in the U.S., which might help Meltwater’s cause here. But its central argument – that it operates like a search engine by 'transforming' the original work into a different kind of product – was tried here a few years ago in the Century 21 v. Zoocasa case and failed miserably,” he says.

Simpson says the Associated Press v. Meltwater case is also factually close to a matter he recently settled between two news publishers where the big issue was whether the first to report a news story could prevent the other from reporting the same story slightly differently shortly after.

“No one can claim rights in facts but where an article is primarily factual, it can be difficult to distinguish between the actual facts and original expression of those facts and, similarly, between fair and unfair use of the factual article,” he says.

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