Before proceedings continued in the morning on Tuesday, Justice Barnes explained some parts of what he thinks both counsels should include in their final submissions, including the following: “This is a matter of contract, possibly entering contractual limitations, and the extent to which contractual limitations include a subscriber, or agreed to by a subscriber … to what extent do they apply to third party receivers of the information. We’re not strictly speaking contractual bound.”
Andre Kaufman, the legal counsel for the defendants, cross-examined Tom Korski, Blacklock’s Reporter’s editor, for over half of the day’s proceedings. During Kaufman’s examination of Korski, he questioned the accuracy of some of his previous stories as well as the two articles involved in this case. At one point Justice Barnes intervened to clarify why Korski had stated in an article that the department had not commented. He did not seem impressed with Korski’s answers.
“Even in this circumstance, where you knew the department had commented, you left—it seems to me Mr. Korski that that was not a correct statement. You said that the department did not comment. In fact the correct way to report on that seems to me to have said — given the editorial dilemma you commented on yesterday, you had a dilemma as to how to work in the comments — the correct way to deal with that would be to say nothing at all about what the department had commented, do you not agree with that? Do you not see the logic of that? Your answer misrepresented what you knew,” said Justice Barnes.
Kaufman also went over previous Blacklock’s subscription rates to put into question the plaintiffs’ amount of their claim of $17,816.71 in damages and questioned Korski further on the terms and conditions of his news site.
Korski, during Kaufman’s cross-examination, defended his claim of damages.
“It’s a matter of public record the government of Canada spends 22 or so million dollars a year on electronic media monitoring. These are public documents they’ve been tabled in the House of Commons … Certainly the information is available to the employees of each department. No one spends more on electronic media monitoring than federal departments… If we receive an individual subscription by a person who is a communication officer of a federal department that is part of an institution that spends 20 million a year on electronic media monitoring, I think a reasonable person — and we did — that they would be the last ones to be confounded by licencing agreements, media monitoring terms … to distribution of copy.”
Kaufman responded: “Mr. Korski, there is a difference between paying millions of dollars for The Globe and Mail and paying a lesser amount for a startup…”
“Other startups receive five-figure amounts,” answered Korski.
Near the end of Korski’s testimony, in response to a question from his counsel, Yavar Hameed, explained the significance of the case as seen by him.
“Are concern is, your honour, if we’re wrong in law then it can’t just be an exemption for our little mom and pop company. Then, not only is our paywall model fatally flawed but we don’t understand why the government would pay any licencing agreement to anyone if they could invoke fair dealing for the reason it states. So, it strikes us that the payments … they made with publishers they contract with are effectively subsidies. And that raises a lot of questions. And as a lifelong reporter, it raises some concerns. If some publishers get subsidies and other publishers can have their paywall material distributed under fair dealing, that sounds like de facto regulation,” said Korski.
At another point during Korski’s testimony, Judge Barnes intervened and asked, “Have you ever accepted someone’s explanation for …circulation as excusable in the fair dealing provisions?”
“No, you know what we do? People ask us to unlock stories and we do. … But they ask our permission,” was part of Korski’s response.
After Korski’s testimony was over, Holly Doan, publisher of Blacklock’s, took the stand.
During her examination by her legal counsel she explained how her company displays its product to prospective subscribers by showing the headline and cutline of Blacklock’s articles.
“So my idea when this was designed was that this is a little bit like the newspaper in the newspaper box, where you see the headline, and you see a cutline, which we call above the fold, but you can’t see what’s underneath unless you buy it.”
This testimony will likely be used by Hameed in disputing the defendants’ claim that the plaintiffs send “teaser” emails to induce government departments to access the copy.
During Doan’s testimony she also explained the difficulties of protecting copyright in the digital age where consumers expect content to be free.
“A generation of publishers has given away product, so a generation of Canadians [were] trained that everything’s free, so when you put something free out there — instead of what we hoped, attracting interest in our product in order for people to purchase it — the opposite happened. People then said well that old stuff was free, todays should be too, because they’ve been trained that its free in the Ottawa Citizen or it’s free in The Globe and Mail (most of it). Once something is on the internet it is in the wind. We don’t know how far it can go or how widely it can be shared,” she said.
She also explained why Blacklock’s resorted to litigation and her fears if they aren’t successful in their claim.
“When someone takes your intellectual property I’ve learned that the only place you have to go is the copyright act. You can’t call anybody. So litigation — to me — is about if the department of Finance is allowed to write the manaul on how to get around the paywall and distribute material, then that’s the greenlight for everybody. This is our government, and if our government can do that that’s a message to all our subscribers… If they’re right in law our company is finished. In the last month I’ve had two inquiries from groups that wanted me to speak about the future of journalism and paywalls. … I told them I couldn’t, because this litigation represents the meaning of the paywall for media, online providers. So if there is no hope for my company then I would tell any journalism student not to bother with an online website. The Copyright Act — I’ve learned — is the only friend you have, so at the end of a 34 year career that’s the impact on journalism and more directly the impact on media,” said Doan, holding back tears.
Although the plaintiffs have been bringing up electronic media monitoring (a standard practice by the federal government in which they buy subscriptions to media outlets to track stories being presented to the public) Justice Barnes made it clear he doesn’t see it having relevancy to this case.
“We seem to be straying awfully far afield with a lot of this evidence. I mean I understand media monitoring and all these subscriptions and so on, and I probably wouldn’t have much difficulty of what had happened in this case. … What happened here was not a media monitoring exercise. As I understand it, what happened here is a discreet article that got into the hands of an individual at the department of Finance and then sent it out — an article dealing with the department of finance — and there was an exchange with the department of Finance on the issue, and it went out to a discreet number of individuals. That’s not a media monitoring situation. So how media monitoring situation has anything to do with this case — I have to say — it escapes me, because that is a very different case. If someone takes a piece of copyrighted material and sends it out to 800 people who really have no interest in seeing it other than it might be interesting, it might be entertaining, you know that very well may be a breach of copyright. It would be much harder to make the case of fair use in that situation perhaps, depending how the material was accessed. This is a very different, much more limited situation. I really don’t understand the relevance… We’ve had evidence that the government spends $20 million a year on the subscriptions, take that as a given. The government watches the news very intently,” said Justice Barnes.
He also reminded counsel for both parties that they have been straying from the relevancy of this specific case in their arguments, and his concern of completing the trial in the tight five-day alotted time.
“I’ll make the point that we’re two days in here and there’s been an awful lot of talk about practices of the labours, policies, and approaches. It may or may not have had anything to do with what happened in this case. Let’s focus on what happened here, with respect to the distribution that happened here and why that distribution occurred as it did — what the motivations were, how the information was obtained — because when you opened up this case we all seemed to agree on is that this is context sensitive. Fair dealing, which is going to play a very central role in this case… turns on all sorts of issues specific to what happened here… We spent a lot of time already, I’m a bit concerned, we have a five day trial, if we continue to belabour points that are not specific to this case we’re never going to finish by Friday. I say that to both of you because you have both gone pretty far afield… Let’s come back to what this case is about,” said Justice Barnes.
Doan will be cross-examined tomorrow by Kaufman. Patrick Halley, Senior Chief of Trade and Tariff Policy at Finance, and Sandra Marsden, the President of the Canadian Sugar Institute, are set to take the stand Wednesday.
More from Graeme C. Gordon @GraemeCGordon
Loonie Politics Blog
Loonie Politics Broadcast Network
Click here for more political news headlines.
The post Day Two of Blacklock’s Trial: Question of fair dealing will play significant role in ruling appeared first on Loonie Politics.