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

[Declan McCullagh <declan () well com>]

-------- Original Message --------
Subject: Taking Balance in Copyright Seriously
Date: Thu, 4 Mar 2004 14:36:44 -0500
From: Michael Geist <mgeist () pobox com>
To: Declan McCullagh <declan () well com>
References: <20040304092738.A7039 () baltwash com>

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 () pobox com              http://www.michaelgeist.ca
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