September 13 2017
Titles, Leads and Copyright
The Quebec Superior Court issued an interlocutory injunction prohibiting La Dose Pro Inc. and 9302-1319 Québec Inc. from reproducing, in whole or in part, any article or content prepared by employees of La Presse Ltée, Le Devoir Inc. and Le Soleil.
The Facts: La Presse, Le Devoir and Le Soleil publish news content online and hold the copyright of articles written by their employees. Cedrom-SNI Inc. (“Cedrom”) holds an exclusive licence to reproduce these articles and offer a paid monitoring and news analysis service. The first defendant, La Dose Pro Inc. (“La Dose Pro”), offers a similar service at a lower cost and is Cedrom’s competitor. To do so, La Dose Pro reproduces the title and lead of articles published in the abovementioned daily newspapers based on its subscribers’ interests. La Dose Pro creates no content; what its clients receive comes entirely from other media’s newspapers. The second defendant, 9302-1319 Québec inc., offers a free-of-charge service through the LaDose.pro site, where users only see the reproduced article titles. In both cases, there is a link to the full articles.
La Presse, Le Devoir, Le Soleil and Cedrom claimed that news articles were works protected by copyright, and reproduction of titles and/or leads (i.e. the introductory paragraph summarizing the most important aspects of a story and used to attempt to “hook” readers) constituted a substantial reproduction of the works and therefore copyright infringement. The defendants rejected the accusations and claimed that: (i) the reproduction of titles and/or leads cannot be qualified as a “substantial” reproduction since they represented only a small part of each article; and (ii) their use fell under one of the law’s fair dealing exceptions.
The Decision: The decision was rendered in a very specific context, namely an interlocutory injunction. The order is therefore only valid until a judge issues a decision on the merits of the case. The plaintiffs had to prove that they had an appearance of right. The Superior Court concluded that, in light of the evidence, the reproduction of article leads and/or titles constituted a substantial reproduction under the law. Therefore, leads and titles could not be reproduced without first obtaining the authorization of the copyright holders. The defendants tried to argue that reproduction of leads and titles was allowed because it was a fair use for news reporting, research or private study, criticism or review (exceptions, or more precisely rights, granted by the law to users). However, the Court did not accept the fair dealing argument. It believes that La Dose Pro’s services are not news reporting in itself, but rather communication of the plaintiff’s content. With regard to research, the defendants submitted no evidence that their clients used the websites for research or private study. In any case, the Court believes that the defendants’ use cannot be “fair” in light of the substantial reproduction itself, high number of reproductions and impact on site traffic. Indeed, few of the defendants’ clients read the complete articles on La Presse, Le Devoir and Le Soleil websites. Furthermore, omitting the authors’ names on the reproduction belies the argument based on fair dealing for news reporting, criticism or review.
The Conclusion: In general, work titles in themselves are not protected by copyright if they are not original and distinctive. By granting an interlocutory injunction in relation with titles of newspaper articles, the Superior Court was inclined to recognize to titles the protection granted by the law, at least when assessing apparent rights and in this case’s particular context. Caution is warranted!
For more details regarding the decision issued on July 24, 2017: Cedrom-SNI Inc. c. La Dose Pro Inc., 2017 QCCS 3383 (in French only)