Apparently a little unpleasantness has broken out and lawyers are being consulted within the Canadian Pajamastani Community (the "CPC"). Since I have not witnessed either side of the communications in question, I am in no place to comment upon either side. Since I am a member of the Law Society of Upper Canada with one grand client to call my own, the City of Kingston, I would not give casual advise in the particular even if I could. Given that I have my own political insiders - you know who you are - I need to pander to no others. Their powers are a glory to behold as indeed are the capes and canes they get to wear.
That being said, it is instructive sometimes to review what may and may not be said about others and about the words of others. To the end of that review I would quote the following from this site which I noticed reseaching the micro-brou-ha-ha:
No reproduction whatsoever, in any form, without permission.
To my mind this raises two questions:
- Is a URL an entity that can have legal interest in a copyright? It is if that is a name of a corporation. Despite the proud front I put up here, there is no office staff supporting this effort...in fact, no office. Only me. The copyright hereabout resides in me personally. I do not know what it means when literally a non-entity is claimed as the interest holder of an intellectual property right. What is clear is that someone holds that interest but proper review may require more research. Interesting, though.
- Of more interest is the second statement that no reproduction of any kind is allowed without permission. This, of course, is incorrect. The glories that are section 29 and 29.1 of our Canadian Copyright Act grant us all unique powers of reproduction which must be kept in mind and exercised by ourselves to ensure they do not slip away due to the posturing of property interest absolutists. They are rights akin to those which prohibit actions for trespass where public rights of passage occur, such as in Nova Scotia's Trails Act including section 16 which reads:
16. The designation by the Governor in Council of a trail or the prescribing by the Governor in Council of the recreational use to which a trail or parts thereof may be put does not restrict traditional or prior uses of the trail, unless prohibited by the Minister.
So, just as free persons may walk where they always did unless positively prohibited by the legislature or executive, no reproduction for research and review, as is the case in this post, can be prohibited by the author - only the state can retract those rights. As always there are tests to be passed and reasonable purposes to be presented but that is all set out here in my earlier post about a specific ruling out of the Supreme Court of Canada from earlier this year. As with trespass, there are substantive limits - just as you cannot destroy the public path, you cannot go beyond review and speak harmful untruths. Fortunately, these situations are few and successful cases are fewer as the test for libel is farily strict so as to protect our freedom of speech. The line, however, is there and has to be respected.
Comments
Ben aka the Tiger in Winter - October 14, 2004 10:51 am
'Tis always nice to have other lawyers around to not give legal advice. :-) And in the process of assimilating that information which most emphatically isn't advice, to remember what the safe limits of posts are.
(While still feeling in my heart of hearts that W.K. is acting in a very, very lame way.)
'nee - October 14, 2004 11:58 am
As I understand it, regardless of publishing medium, copyrights reside in the author unless otherwise specified. If you saw a poster downtown would you assume you could copy it, simply because it's placed in public? Of course not. Now, this hasn't been tested for the Internet (that I know of). As long as the publishing venue (in this case, warrenkinsella.com produced by a company of a different name, as akin to say a poster or 'zine produced by a company of a different name) has permission of the author to publish the work, I fail to see the problem. Of course, I realize that, legally, my failing to see a problem has no standing. Damn.
'nee - October 14, 2004 12:20 pm
...although it appears that Kinsella's complaint is about not copyright but about libel. But the bounds of fair comment in Canada are narrower than in the US, even though courts traditionally side with freedom of speech. Kinsella's just being an asshole.
portland - October 14, 2004 12:59 pm
i didnt understand anything in this post but the capes and canes bit is a lovely little touch. just wanted you to know. and i'm mad about starting schilling in one by the way - if they blow it, that's a big part of it (use martinez until you know about schilling you idiots) - but going back to fenway, seeing all season the way these guys just suddenly turn around and pound the ball after a dry spell (unless, of course, the dry spell continues), facing the bottom of the yanks pitching order now, i'm mildly hopeful. d. lowe and wakefield have won big games before. it could happen. and they were down two to oakland last year in a best of five.
Flea - October 14, 2004 1:53 pm
My new ambition in life is to have a cape to go with my cane!
Alan - October 14, 2004 2:50 pm
<i>Shalazam-shala-karaz!!</i><p> Check you front closet, Mighty Flea, and see if my powers are still what they used to be.
SayNay? - October 14, 2004 4:57 pm
"First thing we do," says Dick one of the followers of the rebel Jack Cade in Henry VI, Part II, "let's kill all the lawyers."
'nee - October 14, 2004 5:02 pm
Even the cute ones??
SayNay? - October 14, 2004 5:07 pm
A "cute" lawyer? Now there's an oxymoron. Any "cuteness" is camouflage for their own protection.
Alan - October 14, 2004 5:11 pm
'nee: I think that review, copyright and libel are all on a legal continuum ending in hate speech crime.
Alan - October 14, 2004 5:23 pm
The Blogs Canada e-blog has jumped up all over this situation with both Mr. Kinsella and myself adding to the magic, though not yet directly.
SayNay? - October 14, 2004 6:26 pm
To 'nee:
TAKE NOTICE that in order to avoid further legal action by the undersigned, we hereby demand that you publish the appropriate retraction and apology for the libel in the comparsion used in the abovenoted post which reads, in part:
"...Kinsella's just being an asshole".
Signed: Assholes, everywhere.
Alan - October 14, 2004 8:10 pm
Please...we prefer the diminutive "arsehole" hereabouts.
Jay Currie - October 15, 2004 4:17 am
My view is that the copyright notice at the bottom of Mr. K's blog is meaningless but the copyright is his in any event. Which does not prevent fair use (which is more circumscribed in Canada than elsewhere).
The actual issue, as Kinsella cranks out the Statements of Claim, is when is he going to grow up?
Tragically, not a question amenable to legal analysis.