A couple of months ago I put up a blog posting about copyright and its intersection with that most universal of human conditions, our finite time on this earth. OK, let’s call it by its real name, death, something that we all have to deal with sooner or later. In that blog, after discussing the issue of how copyright protection extends for a specified period of time after the passing of the author, a term of protection generating economic benefit for the author’s estate which can vary in length by country, I referred to the case of a website that was operating in Canada called Afterlife. If you can believe it, the operators of this site were running a business based on the unauthorized postings of obituaries that they harvested from newspapers and the websites of funeral homes. The business model consisted of selling virtual candles and other forms of remembrance for the departed, all without any authorization from the family of the deceased. Since most obituaries are creations (personal descriptions of a person’s life), they enjoy the protection of copyright, so Afterlife’s business model was not only tasteless and an invasion of privacy but also a violation of copyright law. Now the law has caught up with the operators of the site.
In a class action lawsuit filed on behalf of several people whose obituaries of their loved ones were appropriated by Afterlife, the Federal Court of Canada has awarded damages of $20 million ($10 million in statutory damages and $10 million in aggravated damages) against the operators of the site, as well as issuing an injunction to prevent the website from operating again in future. Afterlife’s actions were described by the presiding judge as “high-handed, reprehensible and…a marked departure from standards of decency”. Whether the plaintiffs will see any money is questionable since Afterlife has closed up shop, and did not defend itself in the suit.
But it has not really gone away. It lives on in another form, called Everhere, operated by the same individuals and on the same principles, except that instead of hijacking obituaries word for word the site now uses basic non-copyrightable “tombstone” data (some of which, to the discomfort of family members, it has sometimes managed to get wrong). Everhere also links directly to posted obituaries through funeral home websites, thus avoiding direct copying. It has become in effect a specialized ad-supported obituary search engine, among other things.
Everhere achieved notoriety last year in the aftermath of the tragic accident in Saskatchewan that took the lives of 16 junior hockey players from the Humboldt Broncos when it posted ad-supported obituaries of the young players, soliciting the online purchase of items of remembrance along the same lines as was done on Afterlife. Everhere even went further. Visitors to the site were encouraged to become “affiliate members” by adding other obituaries, with the opportunity to earn a commission on the sale of flowers and virtual candles. It seems that human ingenuity in terms of finding or trying to create a market niche knows no bounds. Nor, it seems, does poor taste.
At any rate, it is satisfying to see that the abuse of copyright (among other abuses) by Afterlife has been punished, and that its new business model no longer involves “obituary piracy”, as the judge in the case termed it. This time, the principals of the new site seem to have designed it to stay within the law, at least insofar as copyright is concerned. They will no doubt argue that they are providing a service to the bereaved or just the plain curious, and are adapting a necessary business function to the digital age.
Interestingly, the case raises some broader issues as outlined in a recent IP Kat posting. The Kat points out that the plaintiffs in the Afterlife case were not primarily concerned with copyright violation; their main complaint was in effect an invasion of personal privacy, but copyright law happened to be the most effective remedy. This poses the question as to whether use of copyright law in this way could have a chilling effect on archival institutions and digitisation projects. The author contends that most copyright objections to digitisation of copyright-protected archival materials do not stem from copyright perspectives per se but rather from concerns by copyright owners who may decline consent on grounds of privacy and/or require further information on the context of the digitisation project.
“Archival materials in that sense are “personal” and “family” documents much like the obituaries and related photographs in the present case. In these circumstances, is the archival institution likely to face copyright infringement suits? What is the likelihood of success or failure of such suits? [In the light of damages of $20million, these are real questions].”
This is a theoretical concern but I think a bit of a stretch. As the IP Kat itself points out, context is the key. In the Afterlife case, the plaintiffs objected to the unauthorized use and monetisation of the obituaries they had written, and had had published. An archival digitisation project will have different motives and objectives. Thus while in theory the digitisation project may be subject to copyright restrictions, it is unlikely to invoke the wrath of rights-holders.
Just the opposite situation now seems to prevail with regard to the obituary piracy case in Canada. It is ironic that now Everhere has apparently found a way around the copyright trap, it seems to be free to draw on a pool of published obituaries (by linking) to drive its business model, with or without the consent of the bereaved family, in the same way as Google or any other search engine provides links to material on the internet without obtaining permission. Just about the only remedy to prevent material from being indexed and subject to search is to not publish it. This is one of the perhaps unfortunate by-products of our digital age. Even the departed are not left to “rest in peace”.
© Hugh Stephens, 2019. All Rights Reserved.