AuthorRobert G. Howell
ProfessionProfessor. Faculty of Law University of Victoria British Columbia
The ability to convert visual and aural expression and information into
a digital format has merged the historically distinct areas of computer
technology and telecommunications to constitute what is today often
described by industr y as “telematics,” ref‌lected principally in Internet
communications. Indeed, the Internet itself is the prime example of a
telematic technology.1 Many of the categories of law applicable to com-
puter technology could therefore be encompassed within a treatment
of telecommunications. Necessarily, however, only those that present
dimensions or issues specif‌ic to the media are included. Features of
copyright law are of considerable signif‌icance in this regard, presenting
issues at the centre of public policy controversy with respect to the na-
ture, purpose, and scope of Internet usage, especially involving down-
loading and peer-to-peer swapping of music, v ideo, or motion picture
productions. Copyr ight also presents media-specif‌ic features with re-
spect to the traditional media. However, the designed decentralization
of the Internet stands in sharp contrast to television networks, cable
companies, and radio stations. Decentrali zation not only presents dif-
f‌iculties in attempting any regulation2 but also renders the application
and enforcement of the general law, including copyright, problematic.
1 Look Up Tech Terms, “telematics,” onli ne: http://searchnetworking.techt arget.
com/sDef‌in ition/0,,s id7_gci517744,00.html.
2 See Chapter 2.
This has led to a focus on the liability and role of system providers or
intermediaries, such as Internet serv ice providers (ISPs) or owners of
host websites, raising systemically focused issues, including those of
balancing the interests of content owners with the privacy and access
rights of users and the public interest in full and effective utilization
of media as sources of information. It has also brought to prominence
substantial issues of private international law (conf‌lict of laws), includ-
ing jur isdiction, choice of law, and enforcement of judgments within
those areas.3
A holder’s copyright exclusivity to communicate protected subject
matter to the public by telecommunication4 and the authorization of
others to make such a communication are of key signif‌icance. It is the
authorization right, in particular, that enables a copyright owner to
proceed against a third party who is not the immediate infringer, on
the basis that the third party has “authorized” the infringement in the
sense that it has “sanctioned, approved, and countenanced” the com-
munication.5 The operative factor is the level of facilitation or contribu-
tion that has enabled the infringement to occur. A nar row formulation
favours the third party. A broad formulation favours the copyright
holder. The medium of the Internet brings this matter into particular
focus for telecommunications.6
The need to properly def‌ine the scope of copyright as a signif‌icant
economic monopoly in today’s marketplace of intangible, informa-
tion-based products is manifest. While strictly an issue of statutory
interpret ation,7 a 2002 decision of the Supreme Court that was re-
aff‌irmed unanimously by the Court in 2004, adopted an incentive
theory of balancing a just reward for an author against “promoting the
public interest in the encouragement and dissemination of works of the
3 See Chapter 6.
4 The right to communic ate to the public by telecommunication i s applicable to
works (s. 3(1)(f)) and a performer’s perfor mance (ss. 15(1)(a)(i) and 26(1)(a)),
Copyright Act, R.S.C. 1985, c. C-42.
5 This clas sic phrase from Falcon v. Famous Players Film Co., [1926] 2 K.B. 474
at 486 was adopted by t he Supreme Court of Canada in Muzak Corp oration v.
Composers, Authors & Pu blishers Association of Canad a Ltd., [1953] 2 S.C.R. 183
at 193 [Muzak]; and recently in Societ y of Composers, Authors and Music Pub lish-
ers of Canada v. Canadi an Association of Interne t Providers, [2004] 2 S.C.R. 427 at
para. 124 [Tariff 22 (SCC)].
6 See text accompa nying note 220ff., below in thi s chapter.
7 See, for example, Compo Co. v. Blue Crest Music Inc. (1979), [1980] 1 S.C.R. 357
at 373; and Bishop v. Stevens, [1990] 2 S.C.R. 467 at 477 [Bishop].
Copyrig ht 219
arts and the intellect,”8 that may provide a contextual perspective for
interpretations, particularly those balancing holder and user interest s.
The Court drew upon the 1769 judgment of Willes J in Millar v. Taylor
(“to encourage letters”).9 It is a formulation in substance identical to
the constitutional requirement in the United States that copyright shall
“promote the progress of science.”10 No doubt the judgment of Willes J
was available to the drafters of the US Constitution in 1789.
1) Essential Principles
Copyright is provided universally within member countries of the
Berne Convention,11 the Universal Copyright Convention,12 or the World
Trade Organization (WTO)13 as long as an author meets the qualifying
requirements of being, at the time of making a work, “a citizen or sub-
ject of, or a person ordinarily resident in, a treaty countr y” or, in the
case of a published work, to have f‌irst published in a treaty country.14
Publication is “making copies of a work available to the public”15 in a
quantity that is suff‌icient to meet reasonable demands given the nature
8 Théberge v. Galerie d’Art du Petit Champlain , [2002] 2 S.C.R. 336, 2002 SCC 34
at para. 30 [Théberge]; and CCH Canadia n Ltd. v. Law Society of Upper Canada ,
[2004] 1 S.C.R. 339 at para. 23 [CCH (SCC)]. See also Euro-Excellence Inc. v.
Kraft Canada Inc, 2007 SCC 37 [Euro-Excellence In c.], dividing the Court b e-
tween a more litera l interpretation (Rothstei n J with Fish J concurrin g at para.
3, and McLachli n CJ and Abella J dissent ing at para. 113) and a more purposive,
contextual i nterpretation focused on ba lancing policy perspe ctives (Bastarache,
LeBel, and Ch arron JJ at paras. 74–76).
9 Millar v. Taylor (1769), 4 Burr. 2303 (K.B.).
10 U.S. Const. art. I, § 8, c l. 8.
11 Berne Convent ion for the Protection of Literary and Arti stic Works, 9 September
1886, 828 U.N.T.S. 221, as last rev’d by the Pari s Act, 24 July 1971, 1161 U.N.T.S.
3, online: ww ies/en/ip /berne /trtdoc s_wo001.html [Berne Con-
ventio n]. See Copyright Act, above note 4, s. 91. Unless otherw ise stated, statu-
tory reference s hereinafter are to the Copyr ight Act, ibid.
12 Universal Copyright Convent ion, 6 September 1952, 216 U.N.T.S. 132, concluded
at Geneva, as la st rev’d by the Paris Act 1971, 943 U.N.T.S. 178.
13 Marrakesh Agreement Establishing the World Trade Organization, 15 April 199 4,
1867 U.N.T.S. 154, 33 I.L.M. 1144. See World Trade Organization Agreement
Implementat ion Act, S.C. 1994, c. 47, s. 2(1) [WTOAIA]. Article 9 of th e Agree-
ment on Trade-Related Aspect s of Intellectual Property Rights [TRIPs Agreemen t],
Annex 1C of the Marrakesh Agreeme nt Establishing the World Trade Organiza-
tion, requires W TO members to comply with art s. 1–21 of the Berne Convent ion
(Paris 1971), above note 11, except for art. 6bis concerning moral r ights.
14 WTOAIA, ibi d., s. 5(1)(a).
15 Ibid., s. 2.2(1)(a)(i).

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