[Ecommerce] [Fwd: [IP] Taking Balance in Copyright Seriously]

Thu Mar 4 15:25:03 2004

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FYI:  important decision in Supreme Court of Canada where fair dealing
is a user's right

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Manon Anne Ress
Consumer Project on Technology
www.cptech.org
PO Box 19367, Washington, DC 20036
manon.ress@cptech.org, voice: 1.202.387.8030, fax: 1.202.234.5176

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To: "Ip" <ip@v2.listbox.com>
Subject: [IP] Taking Balance in Copyright Seriously
From: "Dave Farber" <dave@farber.net>
Date: Thu, 4 Mar 2004 15:49:06 -0400
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-----Original Message-----
From: Michael Geist <mgeist@pobox.com>
Date: Thu, 04 Mar 2004 14:37:09
To:dave@farber.net
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 cour=
t in recent memory.   In the unanimous decision, written by the Chief Justi=
ce, the court now appears to be considering all copyright law interpretatio=
n through the lens of balancing user rights with creators rights.  The deci=
sion shows what it means to do more than pay lip service to balance in copy=
right -- trying to balance the interests of both users and creators means c=
onsidering the impact in all aspects of copyright law and seeking to establ=
ish 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 cop=
iers in the large law library it maintains in Toronto.  The case gave the c=
ourt an opportunity to consider several fundamental copyright principles in=
cluding originality, fair dealing (the Canadian equivalent of fair use), an=
d authorization issues.

Considerations of copyright balance appear everywhere in the decision.  For=
 example, when working to develop a legal definition for originality in a w=
ork, 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 int=
erest in maintaining a robust public domain that could help foster future c=
reative innovation.

Similarly on the issue of fair dealing, the court notes that fair dealing i=
s a user's right. In order to maintain the proper balance between the right=
s of a copyright owner and users' interests, it must not be interpreted res=
trictively. As Professor Vaver, supra, has explained, at p. 171: User right=
s are not just loopholes. Both owner rights and user rights should therefor=
e 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 const=
itute authorization to use the photocopiers to breach copyright law since t=
aking the opposite approach shifts the balance in copyright too far in favo=
ur of the owner's rights and unnecessarily interferes with the proper use o=
f copyrighted works for the good of society as a whole.

In words that may reverberate into the online environment, the court also c=
oncludes that a person does not authorize copyright infringement by authori=
zing the mere use of equipment (such as photocopiers) that could be used to=
 infringe copyright. In fact, courts should presume that a person who autho=
rizes 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 G=
reat Library's patrons to permit the conclusion that it sanctioned, approve=
d 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 p=
romoting the public interest in the encouragement and dissemination of work=
s 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 obj=
ectives 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 b=
ecame 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@pobox.com              http://www.michaelgeist.ca

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