[IP] Canada's Copyright Revolution
Delivered-To: dfarber+@xxxxxxxxxxxxxxxxxx
Date: Mon, 22 Mar 2004 07:03:17 -0500
From: Michael Geist <mgeist@xxxxxxxxx>
Subject: Canada's Copyright Revolution
X-Sender: mgeist@xxxxxxxxxxxxxxxxxx
To: dave@xxxxxxxxxx
Dave,
Of possible interest -- my regular Toronto Star Law Bytes column examines
the recent
Canadian Supreme Court LSUC v. CCH copyright decision. The column argues
that the case instantly ranks as one of the strongest pro-user rights
decisions from any high court in the world, showing what it means to do
more than pay mere lip service to balance in copyright. It then proceeds
the case from four perspectives --
1. The litigants (the Law Society emerged victorious, though not a complete
loss for the publishers)
2. The interpretation of copyright law (new standards for fair dealing and
for authorization as well as the articulation of users rights)
3. The broader perspective on copyright law (the need to adopt a balanced
perspective)
4. The societal shift of the view of copyright (a personalization of the
importance of copyright).
Column at
<http://shorl.com/fybrigrotekytu> [Toronto Star]
Decision at
http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc013.wpd.html
MG
Low-tech case has high-tech impact
MICHAEL GEIST
LAW BYTES
While the public's attention has been focused this month on the Canadian
Recording Industry Association's lawsuit against 29 unnamed file sharers
and the related issue of whether Internet service providers should be
compelled to disclose the file sharers' identities, Canadian copyright law
was hit recently with a decision of far greater import.
The Law Society of Upper Canada v. CCH Canadian, a Supreme Court of
Canada decision released by a unanimous court several weeks ago, instantly
ranks as one of the strongest pro-user rights decisions from any high court
in the world, showing what it means to do more than pay mere lip service to
balance in copyright.
The case involved a dispute between the law society - the body that governs
the legal profession in Ontario - and several leading legal
publishers. Unlike many high-profile cases that involve the Internet, this
case centred on the use of a distinctly old-style copying technology:
photocopiers.
The law society, which maintains the Great Library, a leading law library
in Toronto, provided the profession with two methods of copying cases and
other legal materials. It ran a service that allowed lawyers to request a
copy of a particular case or article. It also maintained several
photocopiers that could be used by library patrons.
The legal publishers objected to the law society's copying practices and
sued for copyright infringement. They maintained the materials being copied
were subject to copyright protection and the law society was authorizing
others to infringe their copyright.
It is worth examining the outcome of the case as well as the court's
analysis from four perspectives, each of which is progressively more
significant.
First, the case can be examined from the perspective of the litigants. The
law society emerged victorious on most counts in this regard as the court
ruled it had neither infringed the publishers' copyright nor authorized
others to do so. The case, however, was not a complete loss from the
publishers' perspective. The court affirmed that although the legal
decisions themselves were not subject to copyright, its test for
originality ensured the value-added material supplied by the publishers,
including summaries of the cases and the specific compilation of decisions,
was sufficiently original to warrant copyright protection.
Second, the case can be examined from the perspective of the court's
interpretation of several important aspects of copyright law. The court
provided a detailed discussion of the fair dealing exception (the Canadian
counterpart to the U.S. fair use doctrine), and concluded the exception
should be granted a large and liberal interpretation. In fact, the court
remarkably fashions exceptions to copyright infringement as new copyright
rights - users' right - that must be balanced against the rights of
copyright owners and creators.
The court also adopted an important new standard for authorization, which
has long been used by copyright owners to hold parties accountable for
allowing others to infringe copyright. On this issue, the court ruled
authorization should be taken to mean "sanction, approve or countenance"
and concluded "a person does not authorize copyright infringement by
authorizing the mere use of equipment (such as photocopiers) that could be
used to infringe copyright."
This finding will have an immediate impact on copyright issues involving
the Internet.
By adopting an approach that allows the providers of equipment to presume
their equipment will be used lawfully, the court has opened the door to
Internet service providers and even peer-to-peer providers to argue they
legitimately presume their subscribers act lawfully and thus cannot be said
to authorize copyright infringement.
Third, the case can be examined from the court's broader perspective on
copyright law. Just two years ago, the Supreme Court's view on copyright
law was that it was there solely to benefit creators. Today, the court now
speaks openly of users' rights and the need to balance rigorously the
interests of creators and users.
For example, in arriving at its interpretation of authorization, the court
concluded 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." Similarly, its liberal interpretation of fair dealing is based
on the analysis that "it is a user's right (and) in order to maintain the
proper balance between the rights of a copyright owner and users'
interests, it must not be interpreted restrictively."
Balance as the central goal of copyright is likely to cause a significant
reinterpretation of Canadian copyright law. As the court demonstrated in
this case, taking users' rights seriously requires a careful examination of
the effects of any copyright test on both users and creators. Moreover, the
need for balance will affect not only the current version of Canada's
Copyright Act but also any subsequent amendments.
As Canada considers copyright reform similar to that found in the United
States, those reforms will be interpreted and applied by Canadian courts
with the overarching goal of maintaining an appropriate copyright balance.
Fourth, and perhaps most important, this case signals a societal shift in
views on copyright. This case may have been seen by the judges as a very
personal one since the work at issue was their own and the conduct called
into question - the copying of cases - something they themselves likely had
done throughout their careers.
These facts point to the growing personalization of copyright. Copyright
is no longer viewed as being primarily about large-scale commercial
infringement claims that do not resonate with the average person. Rather,
copyright is now very personal, focusing on the work, creativity, and
activities of millions of individuals - including judges - who will
increasingly question standards of what is right and wrong through the lens
of their own actions.
As society has shifted in its view of copyright, so, too, have Canadian
courts. The result is a genuine revolution in the state of Canadian
copyright law that will manifest itself long after the current battle over
peer-to-peer file sharing has been resolved.
Michael Geist is the Canada Research Chair in Internet and E-commerce Law
at the University of Ottawa and technology counsel with the law firm Osler
Hoskin & Harcourt LLP. He is online at http://www.michaelgeist.ca and
http://www.osler.com (mgeist@xxxxxxxxxx). The opinions expressed herein are
personal and do not necessarily reflect those of the University of Ottawa
or Osler, Hoskin & Harcourt LLP.
**********************************************************************
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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