Date: Thu, 18 Apr 2002 08:37:02 -0400
To: declan@well.com
From: Michael Geist <mgeist@uottawa.ca>
Subject: Canadian Supreme Court strikes copyright balance
Content-Type: text/plain; charset="iso-8859-1" ; format="flowed"
X-UIDL: ce9fddd6c8f097922d567c0bcc486ab5


Your readers may be interested in a landmark Canadian Supreme Court 
decision that explicitly addresses the question of copyright and 
balance.  In a 4-3 split, the majority notes that the proper balance lies 
not only in recognizing creator's rights but also giving appropriate weight 
to their limited nature.  Moreover, the majority argues 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." Case name is 
ThÈberge v. Galerie d'Art du Petit Champlain inc.

Decision at

My Globe and Mail column on the case, posted below, at

  From globeandmail.com, Thursday, April 18, 2002

Key case restores copyright balance

Michael Geist

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 Theberge 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 Theberge, an internationally-known 
Quebec painter, against an art gallery that purchased posters of Mr. 
Theberge'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. Theberge 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 

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.

Michael Geist is a law professor at the University of Ottawa Law School and 
director of e-commerce law at the law firm Goodmans LLP. His Web site is 
POLITECH -- Declan McCullagh's politics and technology mailing list
You may redistribute this message freely if you include this notice.
To subscribe to Politech: http://www.politechbot.com/info/subscribe.html
This message is archived at http://www.politechbot.com/
Declan McCullagh's photographs are at http://www.mccullagh.org/