International Copyright Law: W[h]ither User Rights?
| Author | Myra Tawfik |
| Pages | 66-85 |
International
Copyright Law:
Myra
Tawfik
The
only
persons
who
would
be
benefited
by
perpetuity
of
literary prop-
erty, would
be the
great publishing houses
and
corporations,
and the do-
minion
of
capital
would
be
extended into
the
intellectual world
by a
species
of
literary
syndicates.1
...
limits
to
absolute protection
are
rightly
set by the
public
interest.2
A.
INTRODUCTION
In
May
2004,
the
Standing Committee
on
Canadian Heritage released
its
Interim Report
on
Copyright
Reform3
in
which
it
made
a
series
of
recom-
mendations
for
revision
of the
Copyright
Act.4
The
Report
was an
attempt
to
"modernize" Canadian copyright
law in
light
of new
digital technologies
Samuel Edward
Dawson,
Copyright
in
Books:
An
Inquiry
into
its
Origin,
and
an Ac-
count
of
the
Present State
of
the Law in
Canada
(Montreal: Dawson Brothers,
1882)
at
35.
From
the
closing
speech
of
Numa
Droz,
President
of the
1884
Diplomatic
Conference
that
led to the
Berne Convention,
as
cited
in
Ricketson,
S.,
The
Berne
Convention
for the
Protection
of
Literary
and
Artistic
Works:
1886-1986 (London:
Centre
for
Commercial
Law
Studies, Queen Mary College,
1987).
Canada, Standing Committee
on
Canadian Heritage, Interim Report
on
Copyright
Reform
(Ottawa:
May
2004),
parlbus/commbus/house/reports/herirpoi/O3-cov2-e.htm>
[the
Report].
R.S.C.
1985,
c.
C-42,
66
1
2
3
4
THEREE
W FhlithpF IJkpf* Rights?
and, both
in
tone
and
tenor,
the
Standing Committee adopted
a
vision
of
copyright
reform
very much steeped
in a
copyright industry perspective,
thereby restricting
to the
point
of
nullifying permitted
uses5
of
copyright
works
in the
digital
environment.6
In
one
fell
swoop,
the
Standing Committee would have Canadian copy-
right
law
transformed
from
remedial legislation designed
to
mediate
be-
tween
a
number
of
legitimate
and
often overlapping interests, including
the
public interest
in
access
to
copyright works,
to one in
which
the
copy-
right holder's
interests
are
paramount. This
position
seems
to fly in the
face
of the
recent pronouncements
of the
Supreme Court
of
Canada
that
remind
policy-makers
that:
The
Copyright
Act is
usually
presented
as a
balance between
promot-
ing
the
public
interest
in the
encouragement
and
dissemination
of
works
of the
arts
and
intellect
and
obtaining
a
just reward
for the
creator....
The
proper balance among
these
and
other
public policy
objectives
lies
not
only
in
recognizing
the
creator's
rights
but in
giv-
ing due
weight
to
their
limited
nature.7
The
Standing Committee also appeared
to
have disregarded
the Su-
preme
Court's ruling
that,
under Canadian law, user rights, manifesting
themselves
in a
range
of
legislated permitted uses,
are to be
accorded equal
treatment
to
those
of
copyright holders.
The
fair dealing exception, like
other
exceptions
in the
Copyright
Act,
is
a
user's
right.
In
order
to
maintain
the
proper balance between
the
rights
of a
copyright
owner
and
users'
interests,
it
must
not be
interpreted
restrictively.
As
Professor Vaver
... has
explained
... :
"User
rights
are not
just loopholes. Both owner
rights
and
user
rights
should therefore
be
given
the
fair
and
balanced reading
that
befits
remedial
legislation.8
The
term "permitted use" will
be
used interchangeably with
the
term "limita-
tions
and
exceptions" throughout this paper
to
encompass
all
restrictions
on
the
copyright monopoly recognized under national
and
international
law
including
"free
uses"
and
compulsory licenses.
This
is
outlined
in
Recommendations
4-6 of the
Report, above note
3.
Theberge
v.
Galerie
d'Art
du
Petit
Champlain
scc/2oo2/2OO2scc34.html>
paras.
30-31.
CCH
Canadian
Ltd.
v. Law
Society
of
Upper
Canada,
org/ca/cas/scc/2OO4/2oo4scci3.html>,
[2004]
i
S.C.R.
339
[CCH
cited
to
S.C.R.]
at
para.
48.
International Copyright
Law 67
5
6
7
8
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