FC: Canadian high court rules 4-3 to limit copyright's reach

From: Declan McCullagh (declanat_private)
Date: Thu Apr 18 2002 - 10:55:33 PDT

  • Next message: Declan McCullagh: "FC: Sen. Mary Landrieu wants to force ICANN to create ".p0rn""

    ---
    
    Date: Thu, 18 Apr 2002 08:37:02 -0400
    To: declanat_private
    From: Michael Geist <mgeistat_private>
    Subject: Canadian Supreme Court strikes copyright balance
    Content-Type: text/plain; charset="iso-8859-1" ; format="flowed"
    X-UIDL: ce9fddd6c8f097922d567c0bcc486ab5
    
    Declan,
    
    Your readers may be interested in a landmark Canadian Supreme Court 
    decision that explicitly addresses the question of copyright and 
    balance.  In a 4-3 split, the majority notes that the proper balance lies 
    not only in recognizing creator's rights but also giving appropriate weight 
    to their limited nature.  Moreover, the majority argues that "excessive 
    control by holders of copyrights and other forms of intellectual property 
    may unduly limit the ability of the public domain to incorporate and 
    embellish creative innovation in the long-term interests of society as a 
    whole, or create practical obstacles to proper utilization." Case name is 
    Théberge v. Galerie d'Art du Petit Champlain inc.
    
    Decision at
    http://www.lexum.umontreal.ca/csc-scc/en/rec/html/laroche.en.html
    
    My Globe and Mail column on the case, posted below, at
    <http://www.theglobeandmail.com/servlet/ArticleNews/printarticle/gam/20020418/TWGEIS>
    
    
      From globeandmail.com, Thursday, April 18, 2002
    
    Key case restores copyright balance
    
    Michael Geist
    
    The view that Canada's copyright law tends to favour content creators may 
    soon be put to rest in light of a recent Supreme Court copyright decision.
    
    While many argue that Canadian copyright law strives to balance the rights 
    of content creators with the rights of content consumers, some analysts, 
    pointing to past Supreme Court jurisprudence, have argued that the 
    legislation speaks only of the artists' interests.
    
    When sorting through complex copyright issues, many commentators advocate a 
    return to first principles.
    
    In the United States, that means going back to the beginning -- to the 
    constitution that features a copyright clause. It gives Congress the power 
    to grant authors and inventors exclusive rights in their work for a limited 
    time, so as to promote the progress of science and the arts. That clause is 
    noteworthy for the balance that it seeks to enshrine by establishing a 
    limited copyright term and by focusing on the societal benefits of creativity.
    
    Since the Canadian constitution does not contain a similar clause, it has 
    been left to the legislatures and courts to develop Canadian copyright 
    first principles. The case of Theberge v. Galerie d'Art du Petit Champlain 
    inc., released late last month, features the Court's most explicit support 
    for a copyright balance. With the court also touching on copyright's impact 
    on innovation and the public domain, the decision should resonate most 
    emphatically with those currently concerned with digital copyright reform.
    
    The case involved a challenge by Claude Theberge, an internationally-known 
    Quebec painter, against an art gallery that purchased posters of Mr. 
    Theberge's work and proceeded to transfer the images found on the posters 
    from paper to canvass.
    
    The gallery's technology was state of the art -- it used a process that 
    literally lifted the ink off the poster and transferred it to the canvass. 
    The gallery did not create any new images or reproductions of the work, 
    since the poster paper was left blank after the process was complete.
    
    Mr. Theberge was nevertheless outraged -- he believed he had sold paper 
    posters, not canvass-based reproductions -- and he proceeded to sue in 
    Quebec court, requesting an injunction to stop the transfers as well as the 
    seizure of the existing canvass-backed images.
    
    Although the Quebec Court of Appeal ruled in favour of the seizure, a 
    divided Supreme Court overturned that decision, finding that the images 
    were merely transferred from one medium to another and not reproduced 
    contrary to the Copyright Act.
    
    In reaching its decision, the Court's comments regarding the importance of 
    maintaining a fair copyright balance are particularly noteworthy.
    
    Writing for the majority of the Court, Justice Ian Binnie stated 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 . . . Once an authorized copy of a work is sold to a member 
    of the public, it is generally for the purchaser, not the author, to 
    determine what happens to it."
    
    Justice Binnie then continued to emphasize the dangers of copyright that 
    veers too far toward copyright creators at the expense of the public. He 
    noted that "excessive control by holders of copyrights and other forms of 
    intellectual property may unduly limit the ability of the public domain to 
    incorporate and embellish creative innovation in the long-term interests of 
    society as a whole, or create practical obstacles to proper utilization."
    
    If these words sound familiar, it is because opponents of digital copyright 
    reform have been voicing similar concerns for several years.
    
    They fear a world in which the right to use copyrighted work in a manner 
    consistent with the Copyright Act may be limited by copyright holders who 
    implement technological measures that result in excessive control. They 
    fear a Canadian replication of the U.S. copyright experience, which has 
    curtailed innovation because some researchers and computer scientists have 
    been unable to present their work out of concern over infringing on digital 
    copyright law. And they fear being prevented from listening to music or 
    reading books in the manner they see fit because the copyright holder 
    determines where and when the work can be used even after it has been 
    purchased.
    
    By sending a clear message about its support for a fair copyright balance, 
    the Supreme Court has indirectly provided the most important submission on 
    the current digital copyright reform consultations. The court has begun to 
    sketch the limits of copyright protection -- those limits include 
    recognizing the rights of users as well as the fact that more copyright 
    protection does not necessarily foster more creativity and innovation.
    
    Supporters of copyright reform have often sought to label their opponents 
    as thieves looking for free music or pirated movies. With this decision it 
    would appear that the opponents have been joined by a group not so easily 
    dismissed: the Supreme Court of Canada.
    
    Michael Geist is a law professor at the University of Ottawa Law School and 
    director of e-commerce law at the law firm Goodmans LLP. His Web site is 
    http://www.lawbytes.com.
    -- 
    **********************************************************************
    
    
    
    
    -------------------------------------------------------------------------
    POLITECH -- Declan McCullagh's politics and technology mailing list
    You may redistribute this message freely if you include this notice.
    To subscribe to Politech: http://www.politechbot.com/info/subscribe.html
    This message is archived at http://www.politechbot.com/
    Declan McCullagh's photographs are at http://www.mccullagh.org/
    -------------------------------------------------------------------------
    Sign this pro-therapeutic cloning petition: http://www.franklinsociety.org
    -------------------------------------------------------------------------
    



    This archive was generated by hypermail 2b30 : Thu Apr 18 2002 - 13:46:27 PDT