Copyright Symposium

AGENDA

8:30-9:00 – Continental Breakfast available, Faculty Common Room

9:00–9:15: Introduction to the day

Andrea Slane (University of Toronto)

 

9:15-10:45: The Copyright Balance, moderated by Grace Westcott (Canadian Copyright Institute)

Teresa Scassa (University of Ottawa)
In the Balance: the Purpose of Canada’s Copyright Act

In the 2002 decision in Théberge v. Galerie d’Art du Petit Champlain the Supreme Court of Canada articulated the purpose of copyright law in terms of a ‘balance’.  By 2004, this balance had become one between the ‘rights’ of users and those of creators.  In this paper, the author argues that the concept of “balance” introduced by the Supreme Court of Canada is:  a) generally inconsistent with the Copyright Act and with the case law that has interpreted it – at least to the extent that it suggests anything approaching equality in the balance; b) incoherent as a tool for the interpretation of the Copyright Act; and c) inconsistent with the role of the judiciary.  What is proposed instead is a return to an approach to statutory interpretation that is grounded in the language of the statute and in the purpose or policy that is expressed in that statute. Given Canada’s current and anticipated international treaty obligations – some of which are linked to a broader trade agenda – given the existing legislation and the copyright reform bills we have seen, it is unrealistic to argue that the Copyright Act incorporates a vision of access and dissemination that is founded on anything much other than the exercise of the economic rights of the copyright owner.  Rather than improving the lot of ‘users’ of works, the Court’s ‘balancing’ approach dangerously expands the role of the courts in this area, creates uncertainty and unpredictability, and, by generating a rhetoric of already existing balance, removes the impetus for government to alter its policy direction.

Abraham Drassinower (University of Toronto)
From Distribution to Dialogue: Remarks on the Concept of Balance
The concept of “balance” cannot support the weight that it is being asked to bear in recent Supreme Court of Canada copyright jurisprudence. This does not mean that we should jettison the task for which the concept of “balance” is currently deployed, but rather that we should formulate alternative means to achieve that task. I propose that we should think of copyright less as a “balance” between authors and users than as a “dialogue” between authors and users. With that end in mind, I will first briefly describe the role of the concept of balance in recent Supreme Court of Canada jurisprudence. Second, I will present an analysis of the rejection in CCH v. Law Society of a sweat of the brow originality standard in favour of a skill and judgment originality standard. This analysis will illustrate the proposition that the concept of balance is unable to do what it is being asked to do. Third, I will by way of conclusion (1) deploy an analysis of the concept of originality in order to suggest the viability of “dialogue” as a structuring metaphor - alternative to that of “balance” - to guide our interpretation of copyright law and of its purpose; and (2) offer some remarks about the legitimate place of “balancing” in copyright jurisprudence.

10:45-11:00 Break, Rotunda, Flavelle House

 

11:00–12:30: Technological Protection Measures and Fair Dealing, moderated by Andrea Slane (U of Toronto, Centre for Innovation Law and Policy)

Richard Owens (Blake, Cassels and Graydon LLP)
Rehabilitating the Image of TPMs

There has been a great deal of discussion about the desirability of technological protection measures (“TPM’s”) used to restrict access to and copying of digital works.  Of particular comment has been their effect on rights of fair dealing arising under the Copyright Act (“Act”), and fair use rights in the United States.  But properly understood, TPM’s frustrate no recognised fair dealing right, and actually increase users’ access to works.  Copyright law, including the fair dealing exception, does not support a user right to re-create all or any part of a given work, digital or otherwise.  The assertion that TPM’s put fair dealing (or fair use) at risk masks what would be a radical increase in users’ rights, and a commensurate weakening of copyright.  To mandate fair dealing features in TPM’s would be a poor policy choice.  Authors’ compliance would be a practical impossibility, and very expensive.  To permit hacking around TPM’s is a “solution” inappropriate for the vast majority of users and disrespectful of the authors of TPM’s themselves.  Such mandatory requirements, as well as other schemes such as  the “notice and takedown” like regime proposed by Reichman, Samuelson and Dinwoodie, or Julie Cohen’s “theorem” would not survive a cost/benefit analysis.  A fuller normative evaluation, and consideration of the economics of trade in “works”, do not support interference with the use or design of TPM’s.  There may be many circumstances and possible uses in which adoption of TPM’s will prove futile, but the choice of TPM technology, and the nature of such technology, is best understood as lying in the discretion of the rights holder.  Such discretion may be an aspect, or an important corollary, of the author’s publication right; i.e., allowing her to decide the form and terms on which a work is made available.  The Act does not now and should not impose expensive and impractical duties as a condition of publication.   [download the presentation]

Carys Craig (Osgoode Hall Law School, York University)
Digital Locks & the Fate of Fair Dealing: In Pursuit of “Prescriptive Parallelism”
This paper considers the fate of fair dealing and other copyright exceptions in the face of impending “para-copyright” protection for technological protection measures [TPMs]. As many commentators have observed, anti-circumvention laws have the capacity to undermine the exceptions and limitations found in traditional copyright law, and thereby disrupt the so-called “copyright balance.” My argument takes, as its normative starting point, the principle of “prescriptive parallelism” (Reichman, Dinwoodie, Samuelson) according to which “the traditional copyright balance of rights and exceptions should be preserved in the digital environment.” Accepting (albeit reluctantly) the inevitability of anti-circumvention provisions, I consider how a substantive continuity in the balance of interests could be achieved in Canada. In particular, I argue that the role of fair dealing as an integral part of copyright policy – and as a fundamental aspect of a positively constructed public domain – requires a degree of protection and respect that the provisions of Bill C-61 failed to provide. By drawing lessons from other jurisdictions, taking advantage of the flexibility inherent in the WIPO Copyright Treaties, and of course, resisting political pressures, it should be possible to construct this new layer of rights around the existing corner-stones of Canadian copyright policy in a way that achieves some degree of prescriptive parallelism. In other words, it may not be too late to place limits on digital locks and save fair dealing from its fate. [download the presentation]

12:30-1:30: Lunch, Faculty Common Room

1:30-3:00: Copyright Misuse and Competition Law, moderated by Anthony Wensley (U of Toronto, Rotman School of Management)

 

Pierre-Emmanuel Moyse (McGill)

Different Shades of Grey? From Unfair Competition to Misuse

How much right does a right contain? In Kirkbi, the Supreme Court of Canada expressed serious reservations as to the use of trademark law to ground exclusionary conduct. In rejecting the claim, the Court concluded that the "appellant is no longer entitled to protection against competition in respect of its product. It must now face the rigours of a free market and its process of creative destruction". This statement, made at the foot of the Court’s judgment, invites us to reflect, not so much on the text or its interpretation, but on the impunity presumably given to the right holder by the law. In order to contain the power inherent in a right - un droit subjectif in the civilian theory - jurists have designed corrective mechanisms, such as passing off, equitable remedies, misuse and abuse of right doctrines. Such devices, we submit, aim to protect our society against antisocial conduct resulting from an excessive or unreasonable use of a right. Should the court review or reassess the social or economic objectives of the law it is asked to apply?

Ariel Katz (University of Toronto)
The Rationality of IP Misuse Doctrine: Lessons for Canada
In the US, courts have established a doctrine of IP misuse, which allows a defendant in an infringement case to be excused on the grounds that the plaintiff had misused her IP right. In his talk, Prof. Katz will explore the rationale behind the misuse doctrine and whether it should be adopted in Canada.  [download the presentation]

The Symposium is part of CILP's Microsoft Information Society Project.