IP: Canadian Supreme Court restores copyright balance

[David Farber <dfarber () earthlink net>]

-----Original Message-----
From: Michael Geist <mgeist () uottawa ca>
Date: Thu, 18 Apr 2002 08:35:36 
To: farber () cis upenn edu
Subject: Canadian Supreme Court restores copyright balance

Dave,

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.
-- 
**********************************************************************
Professor Michael A. Geist
University of Ottawa Law School, Common Law Section
57 Louis Pasteur St., P.O. Box 450, Stn. A, Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
e-mail: mgeist () uottawa ca
URL:    http://www.lawbytes.ca

Looking for Internet and technology law resources?  Check out:
- the Canadian Internet Law Resource Page (CILRP) at: http://www.cilrp.org/
- my bi-weekly Globe & Mail Cyberlaw column at http://www.globetechnology.com
- the 2nd edition of my Internet law textbook at 
http://www.captus.com/Information/inetlaw-flyer.htm
- Butterworths monthly newsletter Internet and E-commerce Law in 
Canada at 
http://www.butterworths.ca/sampleinternetandecommercelawincanada.htm
- UDRPInfo.com for information on the ICANN UDRP at http://www.udrpinfo.com.

My daily Internet law news service is now BNA's Internet Law News. 
Visit http://www.bna.com/ilaw to subscribe to this free service. 


For archives see:
http://www.interesting-people.org/archives/interesting-people/