Taking Balance in Copyright Seriously

[Dave Farber <dave () farber net>]

-----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 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
 

-------------------------------------
You are subscribed as interesting-people () lists elistx com
To manage your subscription, go to
  http://v2.listbox.com/member/?listname=ip

Archives at: http://www.interesting-people.org/archives/interesting-people/