I've posted several pieces on the recent Supreme Court of Canada
copyright decisions, including an immediate
overview, a piece
on why Canada has shifted to fair use, an analysis
of the inclusion of a technological neutrality principle, a discussion
on the implication for Access Copyright, and a high level look at
the key
issues. This final post in the series tries to provide a
broader context for what just occurred as the decisions mark the
culmination of a ten year transformation of copyright at Canada's
highest court. Over the years, many have expressed doubts about this
transformation, yet these five cases should put to rest the debate
over whether a balanced analysis of the Copyright Act that
prioritizes both creator and user rights has been entrenched in
Canadian copyright law.
The shift began in 2002 with the Theberge
decision, in which Justice Binnie for the majority discussed
the copyright balance:
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.
In crassly economic terms it would be as inefficient to
overcompensate artists and authors for the right of reproduction
as it would be self-defeating to undercompensate them. 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.
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. This is reflected in the exceptions to copyright
infringement enumerated in ss.29 to 32.2, which seek to protect
the public domain in traditional ways such as fair dealing for the
purpose of criticism or review and to add new protections to
reflect new technology, such as limited computer program
reproduction and "ephemeral recordings" in connection with live
performances.
It is fair to say that many in the copyright bar may have initially
underestimated the shift that was underway. For example, Roger
Hughes, one of Canada's leading copyright experts (now a judge on
the federal court) told
one reporter that "Theberge really does not impact on digital
copyright or digital situations that may arise, for instance, out of
(the U.S. Digital Millennium Copyright Act)." Jay Kerr-Wilson, one
of the most successful litigators in the recent cases, was then a
counsel with the Canadian Cable Television Association said "people
will probably try to use this by analogy to argue digital stuff, but
it's not a digital case. Canvas and paper isn't bits and bytes."
Two years later, it became clear that Theberge was the thin edge of
the wedge, providing the opening for an aggressive move toward to
copyright balance and user rights. In the CCH
decision, a unanimous court embraced the dual purpose of
copyright and the need for balance. The Chief Justice wrote:
Before reviewing the scope of the
fair dealing exception under the Copyright Act, it is important to
clarify some general considerations about exceptions to copyright
infringement. Procedurally, a defendant is required to prove that
his or her dealing with a work has been fair; however, the fair
dealing exception is perhaps more properly understood as an
integral part of the Copyright Act than simply a defence. Any act
falling within the fair dealing exception will not be an
infringement of copyright. The fair dealing exception, like other
exceptions in the Copyright Act, 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.'
Applying this statement to fair dealing, the court ruled that "the
fair dealing exception under s. 29 is open to those who can show
that their dealings with a copyrighted work were for the purpose of
research or private study. 'Research' must be given a large and
liberal interpretation in order to ensure that users' rights are not
unduly constrained."
The reaction to the CCH was mixed. The academic community emphasized
its importance with articles by the likes of Craig,
Drassinower
and countless
others
that focused on the important shift in copyright (several of those
articles are cited in the latest Supreme Court judgments).
The rights holder community alternated between dire warnings and
denial. On the dire warnings side, Roger Hughes told
one reporter: "who would (now) do a mathematical text or an
encyclopedia or something like that without thinking, my goodness,
who's going to be handing out copies of this and why and under
what circumstances?" Those same sentiments were repeatedly
echoed during the Bill C-11 discussions and will undoubtedly
resurface in reaction to last week's decisions (though no one asks
that question with respect to an encyclopedia any more).
More common was the denial side, with arguments that users' rights
was simply a metaphor and that little had changed. For example,
Access Copyright's immediate
reaction was "this ruling does not change the fact that most
copying of copyright protected works does not fall under fair
dealing. The Supreme Court stated definitively that copyright does
exist in original works, and that is why organizations must sign an
Access Copyright licence or risk breaking the law."
Which brings us to the recent five copyright cases. For those
opposed to the CCH user rights model, these cases represented the
best, possibly last, hope to reverse the trend. Justice Ian Binnie,
who wrote the Theberge majority, had retired from the court and two
new Harper appointees, Justices Moldaver and Karakatsanis had just
joined. With no prospect of significant legislative copyright reform
for five to ten years (with the possible of exception of ACTA/TPP
related reforms) and no real likelihood of the Supreme Court
grappling with copyright to this degree for the foreseeable future,
this was it.
The arguments against CCH and user rights are unsurprisingly found
throughout the briefs. For example, the Canadian Publishers' Council
intervention argued the meaning of "user rights" is
overstated:
The Appellants and other
Intervenors rely extensively on the concept of "users' rights" to
promote a view of fair dealing that would substantially curtail
copyright holders' rights and permit extensive copying of behalf
of others. Their use of the term to justify this severe
curtailment of exclusive rights illustrates the dangers of
treating the word 'user rights' literally, rather than as a
metaphor to express the importance of user interests.
Access Copyright focused
on the same concern:
In CCH this Court raised
expectations when it held that fair dealing is a "user's right".
Those raised expectations have led users like the appellants to
ask that the right be clarified and made more predictable.
However, this should not come at the expense of upsetting the
balance between users' and creators' rights under the Act.
In the song previews case, CMRRA argued
that users should be given "low weight in the balance intended to
encourage the dissemination of artistic and intellectual works in
the public interest." SOCAN also focused
on the dangers of user rights in the song previews case:
This Court has called fair dealing
a 'users' right." But, as the text of the Act and this Court's
jurisprudence reveal, this 'user's right' is not an unlimited
right to use. The limited purposes for which the fair dealing
defence is available and this Court's guidance on determining
whether a particular dealing is fair circumscribe the defence of
fair dealing and restrict its application to those circumstances
where the user herself is participating in an activity that
furthers the public interest purposes of the Act.
In seeking to establish these limits, SOCAN argued that research
under fair dealing was limited to "the systematic investigation into
and study of materials and sources in order to establish facts and
reach new conclusions."
CRIA tried to rework
CCH by focusing on balance not constraining rights owners and
users:
the proper approach to the
construction of the Act is to focus upon a construction that
achieves the appropriate balance. A large and liberal construction
of the Act that unduly constrains the rights owners or users
should be avoided. In weighing the balance a court must also give
consideration to Canada's obligations under the TRIPS Agreement
discussed below.
Given these submissions, if the Supreme Court wanted to backtrack
from CCH and users' rights, it certainly had ample opportunity to do
so. Yet rather than backtrack, it doubled down on users' rights and
then added yet another foundational lens in technological neutrality
to examine copyright that is likely to favour users.
First, a unanimous court in the song previews reset the law with an
emphasis once again on balance and user rights:
In Theberge v. Galerie d'Art du
Petit Champlain inc., this Court noted that copyright requires "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" (para. 30). Theberge reflected a
move away from an earlier, author-centric view which focused on
the exclusive right of authors and copyright owners to control how
their works were used in the marketplace: see e.g. Bishop v.
Stevens, [1990] 2 S.C.R. 467, at pp. 478-79. Under this former
framework, any benefit the public might derive from the copyright
system was only "a fortunate by-product of private entitlement".
Theberge focused attention instead
on the importance copyright plays in promoting the public
interest, and emphasized that the dissemination of artistic works
is central to developing a robustly cultured and intellectual
public domain. As noted by Professor David Vaver, both protection
and access must be sensitively balanced in order to achieve this
goal. CCH confirmed that users' rights are an essential part of
furthering the public interest objectives of the Copyright Act.
One of the tools employed to achieve the proper balance between
protection and access in the Act is the concept of fair dealing,
which allows users to engage in some activities that might
otherwise amount to copyright infringement. In order to maintain
the proper balance between these interests, the fair dealing
provision âmust not be interpreted restrictivelyâ.
Second, the court built on this approach by:
adopting expansive approaches to private study (now personal
study) and research (a personal interest in the issue or work
may be sufficient to qualify)
expanding private study and research to include instruction
establishing a low threshold for the first stage purposes test
of fair dealing (effectively shifting the law to a fair use
model)
confirming that the copying purposes of not only the actual
copier, but the intended recipient as well must be considered
(effectively allowing an intermediary to benefit from the
purposes of the beneficiary of the copying)
rejecting an aggregate approach for considering the amount of
copying, finding instead that each copy must be considered
individually
finding that there was little evidence of economic harm from
the copying at issue in the Access Copyright case
These are critically important rulings that add significant
flexibility to fair dealing that extends far beyond the CCH case.
Had the court stopped there, these would represent a major victory
for copyright balance and users' rights. But the court goes further,
crafting a second foundational lens with which to consider copyright
claims: technological neutrality. As I noted
earlier, the court frames technological neutrality as a matter of
balance within the Copyright Act and as a means to avoid the double
dipping that occurs when new fees or restrictions are layered onto
new technologies.
The net effect is to firmly reject claims that users' rights is
merely a metaphor. In the eyes of the Supreme Court of Canada, it is
an essential component of Canadian copyright law that is integral to
achieving the purpose of copyright it identified over a decade ago -
a balance that "lies not only in recognizing the creator's rights
but in giving due weight to their limited nature."