Michael Geist on impact of Canadian copyright decision [ip]

[Declan McCullagh <declan () well com>]

-------- Original Message --------
Subject: Canada's Copyright Revolution
Date: Mon, 22 Mar 2004 07:03:36 -0500
From: Michael Geist <mgeist () pobox com>
To: Declan McCullagh <declan () well com>
References: <405A9942.1080309 () well com>

Declan,

Of possible interest -- my regular Toronto Star Law Bytes column
examines the recent
Canadian Supreme Court LSUC v. CCH copyright decision. The column
argues that the case instantly ranks as one of the strongest pro-user
rights decisions from any high court in the world, showing what it
means to do more than pay mere lip service to balance in copyright.
It then proceeds the case from four perspectives --

1. The litigants (the Law Society emerged victorious, though not a
complete loss for the publishers)
2. The interpretation of copyright law (new standards for fair
dealing and for authorization as well as the articulation of users
rights)
3. The broader perspective on copyright law (the need to adopt a
balanced perspective)
4.  The societal shift of the view of copyright (a personalization of
the importance of copyright).
Column at
<http://shorl.com/fybrigrotekytu> [Toronto Star]
Decision at
http://www.lexum.umontreal.ca/csc-scc/en/rec/html/2004scc013.wpd.html

MG


Low-tech case has high-tech impact

MICHAEL GEIST
LAW BYTES

While the public's attention has been focused this month on the
Canadian Recording Industry Association's lawsuit against 29 unnamed
file sharers and the related issue of whether Internet service
providers should be compelled to disclose the file sharers'
identities, Canadian copyright law was hit recently with a decision
of far greater import.

  The Law Society of Upper Canada v. CCH Canadian, a Supreme Court of
Canada decision released by a unanimous court several weeks ago,
instantly ranks as one of the strongest pro-user rights decisions
from any high court in the world, showing what it means to do more
than pay mere lip service to balance in copyright.

The case involved a dispute between the law society - the body that
governs the legal profession in Ontario - and several leading legal
publishers.  Unlike many high-profile cases that involve the
Internet, this case centred on the use of a distinctly old-style
copying technology: photocopiers.

The law society, which maintains the Great Library, a leading law
library in Toronto, provided the profession with two methods of
copying cases and other legal materials. It ran a service that
allowed lawyers to request a copy of a particular case or article. It
also maintained several photocopiers that could be used by library
patrons.

The legal publishers objected to the law society's copying practices
and sued for copyright infringement. They maintained the materials
being copied were subject to copyright protection and the law society
was authorizing others to infringe their copyright.

It is worth examining the outcome of the case as well as the court's
analysis from four perspectives, each of which is progressively more
significant.

First, the case can be examined from the perspective of the
litigants. The law society emerged victorious on most counts in this
regard as the court ruled it had neither infringed the publishers'
copyright nor authorized others to do so.  The case, however, was not
a complete loss from the publishers' perspective. The court affirmed
that although the legal decisions themselves were not subject to
copyright, its test for originality ensured the value-added material
supplied by the publishers, including summaries of the cases and the
specific compilation of decisions, was sufficiently original to
warrant copyright protection.

Second, the case can be examined from the perspective of the court's
interpretation of several important aspects of copyright law. The
court provided a detailed discussion of the fair dealing exception
(the Canadian counterpart to the U.S. fair use doctrine), and
concluded the exception should be granted a large and liberal
interpretation. In fact, the court remarkably fashions exceptions to
copyright infringement as new copyright rights - users' right - that
must be balanced against the rights of copyright owners and creators.

The court also adopted an important new standard for authorization,
which has long been used by copyright owners to hold parties
accountable for allowing others to infringe copyright. On this issue,
the court ruled authorization should be taken to mean "sanction,
approve or countenance" and concluded "a person does not authorize
copyright infringement by authorizing the mere use of equipment (such
as photocopiers) that could be used to infringe copyright."

This finding will have an immediate impact on copyright issues
involving the Internet.

By adopting an approach that allows the providers of equipment to
presume their equipment will be used lawfully, the court has opened
the door to Internet service providers and even peer-to-peer
providers to argue they legitimately presume their subscribers act
lawfully and thus cannot be said to authorize copyright infringement.

Third, the case can be examined from the court's broader perspective
on copyright law. Just two years ago, the Supreme Court's view on
copyright law was that it was there solely to benefit creators.
Today, the court now speaks openly of users' rights and the need to
balance rigorously the interests of creators and users.

For example, in arriving at its interpretation of authorization, the
court concluded 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." Similarly, its
liberal interpretation of fair dealing is based on the analysis that
"it is a user's right (and) in order to maintain the proper balance
between the rights of a copyright owner and users' interests, it must
not be interpreted restrictively."

Balance as the central goal of copyright is likely to cause a
significant reinterpretation of Canadian copyright law. As the court
demonstrated in this case, taking users' rights seriously requires a
careful examination of the effects of any copyright test on both
users and creators. Moreover, the need for balance will affect not
only the current version of Canada's Copyright Act but also any
subsequent amendments.

  As Canada considers copyright reform similar to that found in the
United States, those reforms will be interpreted and applied by
Canadian courts with the overarching goal of maintaining an
appropriate copyright balance.

Fourth, and perhaps most important, this case signals a societal
shift in views on copyright.  This case may have been seen by the
judges as a very personal one since the work at issue was their own
and the conduct called into question - the copying of cases -
something they themselves likely had done throughout their careers.

These facts point to the growing personalization of copyright.
Copyright is no longer viewed as being primarily about large-scale
commercial infringement claims that do not resonate with the average
person. Rather, copyright is now very personal, focusing on the work,
creativity, and activities of millions of individuals - including
judges - who will increasingly question standards of what is right
and wrong through the lens of their own actions.

As society has shifted in its view of copyright, so, too, have
Canadian courts. The result is a genuine revolution in the state of
Canadian copyright law that will manifest itself long after the
current battle over peer-to-peer file sharing has been resolved.

Michael Geist is the Canada Research Chair in Internet and E-commerce
Law at the University of Ottawa and technology counsel with the law
firm Osler Hoskin & Harcourt LLP. He is online at
http://www.michaelgeist.ca and http://www.osler.com
(mgeist () uottawa ca). The opinions expressed herein are personal and
do not necessarily reflect those of the University of Ottawa or
Osler, Hoskin & Harcourt LLP.

--
**********************************************************************
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

_______________________________________________
Politech mailing list
Archived at http://www.politechbot.com/
Moderated by Declan McCullagh (http://www.mccullagh.org/)