The Supreme Court of Canada has been very active on copyright issues over the past decade with cases such as Theberge, CCH, and Tariff 22. In the Theberge case, Justice Binnie identifed a crucial point when it comes to striking the right balance on copyright, stating
“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.”
Brazil recently unveiled its much anticipated copyright reform proposal and it provides a statutory example of applying this principle. Article 107 includes an interesting balance to legal protection for digital locks.
Not only does the proposal permit circumvention for fair dealing and public domain purposes, but it establishes equivalent penalties for hindering or preventing the users from exercising their fair dealing rights. In other words, the Brazilian proposals recognizes what the Supreme Court of Canada stated several years ago – over-protection is just as harmful as under-protection.
a) hinders or prevents the uses allowed by arts. 46, 47 and 48 of this Act [which addresses limitations to copyright including fair dealing]; or
b) hinders or prevents the free use of works, broadcast transmissions and phonograms which have fallen into the public domain.