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IV. INFRINGEMENT AND ENFORCEMENT
structural design. The final plans, though modified, described a structure which, to the layman
would be identical in appearance to a structure built in accordance with Netupsky’s plans. ... In
my opinion, the alterations made by Dominion Bridge were within the limits which should be
considered acceptable.
In the result, there has been no infringement as the alterations were made with the implied
consent or licence of Netupsky.
EXAMPLE 3: Widespread practice does not imply that the
copyright owner has consented to the practice
The defendant, a Canadian newspaper, republished an article from another
Canadian newspaper, which had been licensed to publish it by the plaintiff, a
British weekly paper which owned the copyright. The defendant proved a
common practice among Canadian newspapers to republish one another’s
articles without seeking consent. The plaintiff nevertheless won its infringement
suit:
Gribble v. Manitoba Free Press Ltd, [1932] 1 D.L.R. 169 (Canada:
Manitoba Court of Appeal)
MR JUSTICE TRUEMAN:
[T]he custom of Canadian newspaper publishers to reproduce articles in each other’s papers
without objection has [no] relevance. The custom is consistent with awareness in fact that
newspaper articles are within the [Copyright] Act, and of course in law it makes no difference
that they have not such knowledge.
In [a similar 1892 English case where an English newspaper had copied whole articles or
paragraphs from The Timesnewspaper, the judge said]:
[W]hat the Defendants have done, with respect to articles or paragraphs in which the
Timeshas copyright, is wholly incapable of justification in point of law. The plea of
the existence of such custom, or habit, or practice of copying as is set up can no more
be supported when challenged than the highwayman’s plea of the Custom of
Hounslow Heath. It has often been relied upon as a defence in such cases, but always
has been repudiated by the Courts. In one of the early cases, ... the defendant relied
on “the usual practice” among publishers of magazines to take articles from each
other; but Lord Eldon pointed out that such a custom could not control the law. In the
most recent case I recollect [in 1874], where the general custom of provincial papers
to make such extracts from other papers was relied on, [the judge] said that [l]awful
use for reviewing was right, but unauthorized copying of whole articles was illegal;
and the custom of trade which had been alleged was no justification for breach of
law.
EXAMPLE 4: A licence to person X does not authorize person Y
The plaintiff, a photographer, licensed The Times newspaper to publish a
photograph in which he owned copyright, without charge provided the plaintiff’s
authorship was acknowledged. The defendant, owners of the Sunnewspaper,
re-published the photograph after trying unsuccessfully to contact the plaintiff’s
agent for permission.
