The user-oriented approach to copyright law expressed in CCH Canadian Ltd. v. Law Society of Upper Canada cannot be used to justify media freeloading under the guise of fair dealing. After the death of Stefanie Rengel, four major Toronto newspapers ran photos of the victim that were taken from Facebook. Does this practice falls under fair dealing or freeloading? Applying the facts of this case to the six factors of fairness outlined in CCH, it is evident that this practice does not constitute fair dealing.
The publishers’ use of the photos may fall under one of the enumerated grounds of fair dealing. The newspapers could argue that their use of the photos is for the purposes of “news reporting” under Sec. 29.2 of the Copyright Act, provided that they sufficiently acknowledge the source of the photo. The analysis would then move to the second prong – whether this dealing can be considered “fair.”
Purpose
The purpose of this dealing was to relay a current event, even if it is in a commercial context. However, one could also argue that the purpose of including a picture of the victim was to sell more newspapers.
Character
The publishing of the victim’s photos in major newspapers around the city ensured that multiple copies were made and widely distributed. To recognize such a practice as an industry custom/practice would allow large publishers to freely use people’s photos without consent in future news stories.
Amount
Fair dealing can be applied even if the whole work is copied, as is the case with photographs (Allen v. Toronto Star).
Alternatives
Instead of taking the photos from Facebook without the owner’s consent, the newspapers could have waited for Toronto Police Services or the victim’s family to release pictures. Even if there were no non-copyrighted works available as an alternative, the use of the victim’s photos was not reasonably necessary to achieve the “ultimate purpose” of news reporting. The newspapers could have just as easily reported the story without the photo. This is distinguished from the fact scenario in Allen, where the use of the photo in question was necessary for comparison. The image contrast was the thrust of that article, while it was not the case here.
Nature of the Work
While the victim’s pictures were not confidential in nature, they were also not meant to be as widely disseminated as they were. This is exacerbated by the fact that the pictures were used without the consent of the victim’s family.
Effect on the Work
While there was no market substitution here, the widespread distribution of these pictures has the potential to inflict considerable emotional anguish on the victim’s family and friends.
It is evident that this practice does not meet the standards of fairness set out in CCH. Protecting the rights of the user (the publishers of large newspapers) cannot come at the expense of a victim’s interest or the privacy concerns of the millions of people on Facebook.