Copyright

• Author: Robert G. Howell
• Profession: Professor. Faculty of Law University of Victoria British Columbia
• Pages: 217-273

217

CHA PTER 5

COP Y R IGHT

A. INTRODUCTION

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.

TELECOMMUNICATIONS LAW

218

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 w.wipo.int/treat 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).