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Jay Currie

One Damn Thing After Another

3/05/2004

Copy Rights?

The Canadian Supreme Court has expressly endorsed user as well as creator rights as issues to be considered when determining copyright cases. The Chief Justice, writing for the Court in CCH Canadian Ltd. v. Law Society of Upper Canada (which is online here).

The issues all turned on whether providing self service photocopiers in a law library constituted secondary infringement and whether a fax transmission service - which essentially allows a lawyer to phone in and have a fax of a decision sent to him - was a communication to the public and hence a violation of the Copyright Act.

Were I acting for the Canadian music industry in its unfortunate attempt to emulate the RIAA and go after file sharers, I would take cold comfort from this decision. The Court explicitly rejected the notion that a) merely providing self serve photocopiers constituted secondary infringement, b) that faxing decisions was a communication to the public.

Oddly, it is the question of transmission to the public which will likely cause the CRIA the most grief. The way that file sharing works, a given song is transmitted to a user at the user's request and that transmission is essentially point to point. The "shared folder" from which the song is selected is arguably identical to an online catalogue or list of cases.

It is by no means a knock down argument to protect people who upload files; but it provides a legal framework upon which to make such an argument.

Just as importantly, the Court enunciated broad principles governing the balance of rights between creator and user. Those principles are likely to govern decisions on everything from software to movies and on through music.

The contrast between copyright law in Canada and the more draconian Digital millennium Copyright Act in the United States has been underlined by the Court. Creators have rights, but they do not have monopolies.