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Can Forwarding an E-Mail be a Copyright Violation?

The Lawyers Weekly ran an article on the Front Page of its May 25, 2007, issue with this provocative title in response to an argument put forward by University of Nebraska Law, Ned Snow, in a recently published edition of the Kansas Law Review, that forwarding an e-mail constitutes infringement of common law copyright (at least in the United States). The argument is based on the notion that personal correspondence is protected by a right of privacy commonly referred to as the right of first publication. That right allows an authour exclusive control over whether and when a letter that he or she wrote would be published to a third party was not originally intended to be the recipient.

The good news (for Canadians at least) is that copyright in Canada is a creature of statute and that the Canadian Copyright Act has superseded the concept of common-law copyright. The U.S. argument is based on the notion of using copyright to protect privacy, but the law in Canada has not yet gone there. Therefore, at least for now, it would appear that Canadians can continue to breathe easily as they hit the “Forward” button on their e-mail programs. All the more reason to exercise restraint in sending e-mails with content you would not want showing up on the front page of the newspaper or on the popular website “Face Book”.