-----Original Message----- From: Michael Geist <[EMAIL PROTECTED]> Date: Thu, 04 Mar 2004 14:37:09 To:[EMAIL PROTECTED] 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 [EMAIL PROTECTED] http://www.michaelgeist.ca ------------------------------------- You are subscribed as [EMAIL PROTECTED] To manage your subscription, go to http://v2.listbox.com/member/?listname=ip Archives at: http://www.interesting-people.org/archives/interesting-people/
