[Politech] Canadian Sup. Court favors users over stronger copyright rules [ip]

From: Declan McCullagh (declan@private)
Date: Fri Mar 05 2004 - 06:10:04 PST

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    -------- Original Message --------
    Subject: Taking Balance in Copyright Seriously
    Date: Thu, 4 Mar 2004 14:36:44 -0500
    From: Michael Geist <mgeist@private>
    To: Declan McCullagh <declan@private>
    References: <20040304092738.A7039@private>
    
    Declan,
    
    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@private              http://www.michaelgeist.ca
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