Internet Liability

By Terence Russell

*Disclaimer


Document Outline



Key Terms Defined

Liable:
"Answerable for consequences; bound to make good a loss; responsible;..." - New Webster Encyclopedic Dictionary

Copyright:
"...the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, ..." - Copyright Act C-42

Trade-mark:
"A trade-mark is a word, a symbol, a design, or a combination of these, used to distinguish the wares or services of one person or organization from those of others in the marketplace." - Industry Canada

Defamation:
"The uttering of slanderous words with a view to injure anotherís reputation;" - New Webster Encyclopedic Dictionary



Canadian Copyright Law

Under the Copyright Act of Canada an infringement of the copyright law occurs when you reproduce another person's work without permission. This includes plagiarism which involves copying someone else's work and then making a claim of original creation.

The Act protects sound and image records recordings. Interestingly there is no mention of digital recordings.

One common misconception is that ideas are protected by copyright. In fact the Copyright Act only protects the expression of an idea. So for instance if you have a great idea for a new polygon sorting algorithm and you publish it on the web, only your published implementation of that algorithm would be protected. Any other person could come up with another implementation and claim a copyright. However, ideas are not completely unprotected as patent laws have provisions that keep them safe.

Determination of infringement is often a question of how original your published work. The Act specifies that that determination is left up to the courts. Thus if even a minor portion of your work was copied from another source without permission you could be liable for fines or criminal charges.

The punishment for copyright violation depends whether there is a summary conviction or a conviction on indictment. Summary conviction penalties can range from anywhere up to twenty-five thousand dollars and/or imprisonment for up to six months. Conviction on indictment can result in a fine up to one million dollars and/or imprisonment for up to five years.

One great thing about the Copyright Act is that you can plead stupidity indicating that you were not aware of the copyright. However, you must prove that you were unaware of the copyright. If the court believes you then the copyright holders only recourse is a cease and desist injunction.

Interestingly the Act goes on to say that a injunction does not apply in the case of a building construction. Otherwise the copyright owner could have the building torn down!

There was a case in the States (United States v. LaMacchia) where a bulletin board operator was giving away free copies of commercial software through his bulletin board service that was accessible from the Internet. In his court hearing the judge ruled that he had not violated the copyright laws because he was not attempting to earn any money from it. Apparently under the American Copyright Act an infringement of copyright is criminal only if the copyright was infringed "willfully and for purpose of commercial advantage or private financial gain."

Canada's Copyright Act is a little more stringent in that there is a clause that could be used to cover just about any violation. It is found in section 42. (1) (c) where it states:

Every person who knowingly distributes infringing copies of any work in
		which copyright subsists either for the purpose of trade or to such an
		extent as to affect prejudicially the owner of the copyright.
-- The Copyright Act (C-42)

With the phrase "affect prejudicially" it is very unlikely that a person could get away with the same kind of piracy.


What are Your Copyright Rights?

Canadian citizens have automatic copyright protection for anything original works they produce. Thus it is not necessary to register with the Copyright Office, but if you do so you do have extra legal protection. One thing to note is that our laws do not require any copyright symbols in order to claim copyright. This somewhat eliminates the defense that you were unaware of copyright because there was no (C) symbol. However, if you plan on publishing in other countries be sure to check on the status of using copyright symbols as some nations require them.

Internationally Canadians have copyright protection in the British Commonwealth countries. This because of our status as British subjects. Canada has also signed two major international copyright treaties, namely the Berne Copyright Convention and the Universal Copyright Convention. This means that all member nations have agreed to help enforce a certain standard of copyright protection. Thus your work is generally guaranteed to be protected around most of the world. Canada has gone one step further by giving all member nations the same protection that Canadian citizens have. So if you copy something from an Internet site in another country and you proceed to promote it as your own, you could be breaking Canadian copyright law.


Internet Copyright Liability Pitfalls

So what then are some of the most common Internet copyright violations?

Many people copy portions of HTML documents and graphics found on the World Wide Web into their own HTML documents without asking for permission. By the standards of Canadian copyright law this could make them liable for copyright violation, especially if the copied documents generated some kind of revenue for the violator.

Many of those anonymous graphic images found on ftp sites and Web sites are often illegal copies of copyrighted material. For instance, Playboy magazine released an editorial that stated that it has never authorized the reproduction of it's images in the GIF format. Chances are pretty good that your 'Scooby Doo' and 'Dilbert' backgrounds are also copyrighted material.

In Canadian copyright law there is a provision that states that photographs retain their copyright status for fifty years from the day of creation. So it is quite possible that images created before 1946 may be used on the Internet.

For people who earn an income by creating web pages, you should know that your employer is the legal copyright holder of any Internet material you produce provided that you have entered into contract to produce Internet material for that employer. Thus if you create a web page for one company, and then decide to use portions of it for another company you may be liable for copyright violation.



Canadian Trade-mark Law

Trade-marks are similar to copyrights in Canada in that they do not have to be registered in order to be valid. However, for maximum protection it is advised that you register your trade-marks. Trade-mark law is different from copyright law in that the holder of the trade-mark is responsible for bringing the infringing party to court. The person infringing on your trade-mark may be ordered by the court to cease the infringement and/or to pay any damages. Trade-mark violation is not a criminal activity and is therefore not prosecuted as such.


Using trade-marks as Domain Names

For most users, trade-mark liability is not be a problem, but for the power user who wants a custom Internet domain name it can be. It is entirely possible that your domain name could contain elements from a another business's registered trade-mark.

In the U.S. there have been several instances of domain names being pirated. An editor of "Wired" magazine had his email account set to ronald@mcdonalds.com. A former on-air personality for MTV registered the name mtv.com. An adult oriented web site used the domain name playmates.com. In all of these cases the trade-mark holders got control over the domain name.

To fix this problem, the domain name registration authority, Network Solutions Inc. (NSI), increased the registration fee and added a yearly maintenance fee in order to persuade the casual user from registering names indiscriminately. Applicants must also certify that the domain name they want to register does not infringe on any current trade-marks. If a registered name is later found to be infringing on a trade-mark, NSI places a hold on use of the name until the matter is settled by the parties involved.
To avoid any legal wrangling a user should perform a trade-mark check on the desired name before registering it. The consequences of having a conflicting name could be costly in terms of time and money.



Defamation on the Internet

By Canadian law definitions defamation occurs through libel when defamatory words or statements are published and the plaintiff is defamed. However, this can easily be defended against if the statements are shown to be true.

In Australia an anthropologist was laid off from the University of Western Australia. Soon after the same anthropologist was defamed by another anthropologist through the USENET newsgroup, sci.anthropology. The defamed plaintiff was awarded damages of around $40,000 (Australian).

In the U.S. a judge ruled that CompuServe was not responsible for defamatory materials that appeared in one of their forums. The judge reasoned that given the volume of information that CompuServe handles there is no way that the defamatory materials could have been found and filtered out. This case sets a precident that could excuse Internet service providers from any defamatory liability.

These two cases suggest the direction in which the law will go. However, Canadian libel laws are as yet untested on the Internet.



Links



References

Copyright Information Sources
Trade-mark Information Sources
Defamation Information Sources



Disclaimer of Liability

The information contained within this HTML document should not be construed as legal advice. Nor should this document be used as a legal guide. This information is presented for general interest only. Any attempt to use this document in a court of law is done so at the risk of the user.

Questions? Comments? Contact
russell@cpsc.ucalgary.ca