[IP] Taking Balance in Copyright Seriously
-----Original Message-----
From: Michael Geist <mgeist@xxxxxxxxx>
Date: Thu, 04 Mar 2004 14:37:09
To:dave@xxxxxxxxxx
Subject: Taking Balance in Copyright Seriously
Dave,
Earlier today, the Canadian Supreme Court issues a copyright decision that may
rank as one of the strongest pro-user rights decisions from a high court in
recent memory. In the unanimous decision, written by the Chief Justice, the
court now appears to be considering all copyright law interpretation through
the lens of balancing user rights with creators rights. The decision shows
what it means to do more than pay lip service to balance in copyright -- trying
to balance the interests of both users and creators means considering the
impact in all aspects of copyright law and seeking to establish tests that
respect the interests of both perspectives.
Today's case - the Law Society of Upper Canada v. CCH - involved a lawsuit by
legal publishers against the Ontario provincial bar association for its
practice of providing both a custom photocopy service and self-service copiers
in the large law library it maintains in Toronto. The case gave the court an
opportunity to consider several fundamental copyright principles including
originality, fair dealing (the Canadian equivalent of fair use), and
authorization issues.
Considerations of copyright balance appear everywhere in the decision. For
example, when working to develop a legal definition for originality in a work,
the court expresses concern that too low a threshold tip[s] the scale in favour
of the author's or creator's rights, at the loss of society's interest in
maintaining a robust public domain that could help foster future creative
innovation.
Similarly on the issue of fair dealing, the court notes that fair dealing is a
user's right. In order to maintain the proper balance between the rights of a
copyright owner and users' interests, it must not be interpreted restrictively.
As Professor Vaver, supra, has explained, at p. 171: User rights are not just
loopholes. Both owner rights and user rights should therefore be given the fair
and balanced reading that befits remedial legislation.
Finally on authorization (the publishers claimed the Law Society authorized
infringement by providing self-service copiers), the court concludes that the
mere provision of photocopiers for the use of its patrons did not constitute
authorization to use the photocopiers to breach copyright law since taking the
opposite approach shifts the balance in copyright too far in favour of the
owner's rights and unnecessarily interferes with the proper use of copyrighted
works for the good of society as a whole.
In words that may reverberate into the online environment, the court also
concludes that a person does not authorize copyright infringement by
authorizing the mere use of equipment (such as photocopiers) that could be used
to infringe copyright. In fact, courts should presume that a person who
authorizes an activity does so only so far as it is in accordance with the law.
Moreover, even if there were evidence of the photocopiers having been used to
infringe copyright, the Law Society lacks sufficient control over the Great
Library's patrons to permit the conclusion that it sanctioned, approved or
countenanced the infringement.
Nearly two years ago the court released a decision called Theberge in which it
re-examined the purpose of copyright, viewing it as a balance between promoting
the public interest in the encouragement and dissemination of works of the arts
and intellect and obtaining a just reward for the creator and cautioning that
the proper balance among these and other public policy objectives lies not only
in recognizing the creator's rights but in giving due weight to their limited
nature.
Today, the impact of that decision and the effect of balance in copyright
became fully apparent. The decision is online at
http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc013.wpd.html
Best,
MG -- **********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa Law School, Common Law Section
Technology Counsel, Osler, Hoskin & Harcourt LLP
57 Louis Pasteur St., P.O. Box 450, Stn. A, Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319 Fax: 613-562-5124
mgeist@xxxxxxxxx http://www.michaelgeist.ca
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