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Key Case Restores Copyright Balance

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The view that Canada's copyright law tends to favour content creators may soon be put to rest in light of a recent Supreme Court copyright decision.

While many argue that Canadian copyright law strives to balance the rights of content creators with the rights of content consumers, some analysts, pointing to past Supreme Court jurisprudence, have argued that the legislation speaks only of the artists' interests.

When sorting through complex copyright issues, many commentators advocate a return to first principles.

In the United States, that means going back to the beginning — to the constitution that features a copyright clause. It gives Congress the power to grant authors and inventors exclusive rights in their work for a limited time, so as to promote the progress of science and the arts. That clause is noteworthy for the balance that it seeks to enshrine by establishing a limited copyright term and by focusing on the societal benefits of creativity.

Since the Canadian constitution does not contain a similar clause, it has been left to the legislatures and courts to develop Canadian copyright first principles. The case of Théberge v. Galerie d'Art du Petit Champlain inc., released late last month, features the Court's most explicit support for a copyright balance. With the court also touching on copyright's impact on innovation and the public domain, the decision should resonate most emphatically with those currently concerned with digital copyright reform.

The case involved a challenge by Claude Théberge, an internationally-known Quebec painter, against an art gallery that purchased posters of Mr. Théberge's work and proceeded to transfer the images found on the posters from paper to canvass.

The gallery's technology was state of the art — it used a process that literally lifted the ink off the poster and transferred it to the canvass. The gallery did not create any new images or reproductions of the work, since the poster paper was left blank after the process was complete.

Mr. Théberge was nevertheless outraged — he believed he had sold paper posters, not canvass-based reproductions — and he proceeded to sue in Quebec court, requesting an injunction to stop the transfers as well as the seizure of the existing canvass-backed images.

Although the Quebec Court of Appeal ruled in favour of the seizure, a divided Supreme Court overturned that decision, finding that the images were merely transferred from one medium to another and not reproduced contrary to the Copyright Act.

In reaching its decision, the Court's comments regarding the importance of maintaining a fair copyright balance are particularly noteworthy.

Writing for the majority of the Court, Justice Ian Binnie stated 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 . . . 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."

Justice Binnie then continued to emphasize the dangers of copyright that veers too far toward copyright creators at the expense of the public. He noted that "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."

If these words sound familiar, it is because opponents of digital copyright reform have been voicing similar concerns for several years.

They fear a world in which the right to use copyrighted work in a manner consistent with the Copyright Act may be limited by copyright holders who implement technological measures that result in excessive control. They fear a Canadian replication of the U.S. copyright experience, which has curtailed innovation because some researchers and computer scientists have been unable to present their work out of concern over infringing on digital copyright law. And they fear being prevented from listening to music or reading books in the manner they see fit because the copyright holder determines where and when the work can be used even after it has been purchased.

By sending a clear message about its support for a fair copyright balance, the Supreme Court has indirectly provided the most important submission on the current digital copyright reform consultations. The court has begun to sketch the limits of copyright protection — those limits include recognizing the rights of users as well as the fact that more copyright protection does not necessarily foster more creativity and innovation.

Supporters of copyright reform have often sought to label their opponents as thieves looking for free music or pirated movies. With this decision it would appear that the opponents have been joined by a group not so easily dismissed: the Supreme Court of Canada.

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