Scott Tribe pointed out on his blog today that the CBC has implemented new copyright policies on its online news properties. As boingboing explains, the CBC has signed up with iCopyright, an American service which sells licences to digital content creators to allow them to re-post or re-publish CBC content for a monthly fee. Cory Doctorow points out that this is the same service that purports to sell readers of Associated Press content the ability to quote 5 or more words from AP stories.

As a business strategy, I think this is clearly going to be a spectacular failure. Any company large enough to pay $250/month to re-post a single article can also create its own original content at a lower cost. Consequently, I don’t imagine that the CBC will sell very many licenses.

Of course, selling licenses isn’t really the point of the new policy. The point is scare small, independent digital content creators from sourcing the CBC. As Doctrow observes:

The cherry on the cake? iCopyright offers a reward of up to $1,000,000 for snitching on bloggers who don’t pay Danegeld to Canada’s public broadcaster to quote the works they funded.

On top of that, the licensee must “agree not to criticize the CBC, the subject of the article, or its author.”

This, too, seems like an unsound business strategy to me. When bloggers link to or reference CBC‘s online content, it is almost universally the practice of good bloggers to provide a link to the original content. This drives traffic to the CBC‘s online properties both directly (through people clicking on the link) and indirectly (through the Google PageRank benefit which accrues from inbound links, causing CBC‘s stories to achieve more favourable rankings in search results). The CBC seemed to acknowledge the important role that bloggers play in the online news ecosystem when it introduced features such as their “most blogged” content. Recently, these innovative social media features were removed; now they are being replaced with restrictive copyright policies that discourage bloggers from linking to CBC at all.

The CBC, like any other content provider, has a right to protect its intellectual property within the limits of copyright law. To the extent that other parties wish to re-publish the CBC‘s content in full and without comment (by the way, good bloggers never do this anyway), the CBC has the right to dictate the terms and conditions.

However, as the Supreme Court made perspicuous in CCH Canada Ltd. v. Law Society of Upper Canada, there are limits on the scope of copyright protection. The Court is extremely clear on the point that fair dealing is not simply a defence to a claim by a copyright holder; it is a distinct right held by users of copyright material. In other words, “Any act falling within the fair dealing exception will not be an infringement of copyright [emphasis added].”

In determining whether the use of copyright material falls within the fair dealing exception, the court will look at six factors (I have provided short extracts from the case to explain each factor):

1. The purpose of dealing.. “In Canada, the purpose of the dealing will be fair if it is for one of the allowable purposes under the Copyright Act, namely research, private study, criticism, review or news reporting”
2. The Character of the Dealing. “If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing.”
3. The Amount of the Dealing. “If the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement.”
4. Alternatives to the Dealing. “If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court.”
5. The Nature of the Work. “Although certainly not determinative, if a work has not been published, the dealing may be more fair in that its reproduction with acknowledgement could lead to a wider public dissemination of the work — one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair.”
6. Effect of the Dealing on the Work. “If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair. Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair.”

On his site, Scott proposes three ways of circumventing the CBC‘s iCopyright program. First, he proposes to paraphrase any material he uses from the CBC. Second, he says that he will seek out alternative sources that use more permissive copyright policies. Finally, he references a commenter on boingboing who suggests that one user can purchase a license and then every other user can link that original licensed use. I question the legality of the third option, as this would likely still constitute an infringement of the original work.

Not being a lawyer, I am prohibited from offering legal services or advice to anyone. Personally, though, I will continue to quote from and source CBC‘s copyright material on my blog, without purchasing a license (as I did in this post). When I quote from CBC, I will link to the original source. I will also continue to ensure that any use I make of copyright material falls within the fair dealing exception by quoting minimally and supplementing quotations with my own original analysis, commentary, criticism, review, and research. It’s not at all clear to me why I would pay $250/month to exercise my existing legal rights, while also contracting out of my right to criticize the original source.

There is one thing that I will change as a result of CBC‘s new iCopyright policy. From now on, whenever I link to CBC, I will use the the rel=”nofollow” construct. This attribute instructs search engines like Google not to index the link as part of its PageRank algorithm. Essentially, the links don’t help their destination sites to achieve higher rankings in search engines. I already use this construct when linking to sources such as the Conservative and Liberal parties (being a New Demcorat, I want to ensure that I’m not giving any advantage, however trivial, to my political opponents). From now on, CBC will not get the trivial benefit they enjoy in terms of search engine ranking when I link to them. This practice will continue until CBC adopts a more balanced and realistic approach to copyright.