Taking User Rights Seriously

• Author: Abraham Drassinower
• Pages: 462-479

Taking

User Rights Seriously

Abraham

Drassinower*

A.

INTRODUCTION

The

recent Supreme Court

of

Canada decision,

CCH

Canadian

Limited

v.

Law

Society

of

Upper

Canada,1

is

rightly

and

widely

regarded

as

bringing

forth

a

truly

fundamental

shift

in the way

Canadian copyright

law is to be

understood

and

practiced.2

Not

least among

the

reasons

the

decision

is of

such

importance

is its

affirmation

of

"user rights"

as a

concept integral

to

I

would like

to

thank

Chris Essert, Richard Owens, Alexander Stack, Arnold

Weinrib, Ernest Weinrib,

and

Agustin Waisman

for

helpful discussions dur-

ing

the

composition

of

this

paper.

I

would

also

like

to

thank

the

Centre

for

Innovation

Law and

Policy

at the

University

of

Toronto Faculty

of Law and the

Social

Sciences

and

Humanities Research Council

of

Canada

for

support

in the

completion

of the

paper.

1

CCH

Canadian

Limited

v. Law

Society

of

Upper

Canada,

2004

SCC 13,

.

umontreal.ca/csc-scc/en/pub/2OO4/voli/html/2OO4scn_O339.html>,

[2004]

i

S.C.R.

339

[CCH cited

to

S.C.R.].

2

See

Daniel

J.

Gervais, "Canadian copyright

law

post-CCH"

(2004)

18

IPJ

131,

_

I5_o8_57_28oo.pdf>;

Matthew

Rimmer,

"Canadian Rhapsody: Copyright

Law

and

Research Libraries" (2004)

35

AARL

193; Teresa Scassa, "Recalibrating

Copyright Law?

A

Comment

on the

Supreme Court

of

Canada's Decision

in

CCH

Canadian

Ltd.

v. Law

Society

of

Upper

Canada"

(2004)

3

CJLT

89;

Barry

B.

Sookman,

"CCH:

A

Seminal Canadian Case

on

Originality

and the

Fair Deal-

ing

Defence" (2004)

18

BNA

WIPR

08,

.

asp?pub_code=i592>;

Michael Geist, "Low-Tech Case

Has

High-Tech Impact"

462

SIXTEEN

copyright law.

In the

Court's eyes, user rights

are as

central

to

copyright

law

as

author rights.

CCH

thus

affirms

the

irreducible centrality

of the

public

domain

in

Canadian copyright jurisprudence.

Informed

legal change

is

unthinkable

in the

absence

of

normative vision.

With

that

in

mind,

this

paper provides

an

understanding

of the

centrality

of

the

public domain

in

Canadian copyright jurisprudence.

The

paper

de-

velops this understanding along

four

distinct

yet

related axes. First,

I

will

discuss

the

role

of the

public domain

in the

very formation

of the

author's

right

by way of the

"originality" requirement. Second,

I

will examine

the

role

of the

public domain

in the

limitation

of the

scope

of the

author's right

by

way of the

"fair

dealing"

defence,

regarded

by

some

as the

user right

par

excellence.3

Third,

I

will sketch

the

ways

in

which

the

concept

of

user rights

catalyzes

a

deepening

of our

conception

of the

wrong

at

stake

in

copyright

law

—

that

is, of the

mischief

that

the

Copyright

Act4

targets. This un

der-

standing supports

a

view

of the

legitimacy

of

incidental reproductions

in

the

course

of

Internet "browsing"

as a

user right.

And

fourth,

by way of

conclusion

I

will

briefly

describe

a

vision

of the

purpose

of

copyright

law in

which

the

centrality

of

user rights

is

absolutely non-negotiable.

B.

ORIGINALITY:

AUTHORS

AS

USERS

In

CCH,

the

Supreme Court sets

out to

settle

the

meaning

of

originality

in

Canadian copyright law.

Faced

with

a

battle between

two

opposing origi-

nality schools,

the

"sweat

of the

brow"

and the

"creativity"

schools,5

the

Court

refuses

to

take sides

in the

debate.

It

posits, rather,

a

third stand-

point,

for

which

the

requirement

of

originality

is one of

"skill

and

judg-

ment."

The

Court formulates

its

refusal

to

side with either school

in

terms

of

the

stated purpose

of

copyright

law as a

"balance" between promoting

the

public interest

and

obtaining

a

just reward

for the

creator. Thus, while

the

sweat

of the

brow school

fails

to

meet with

the

Court's approval

be-

cause

it is

seen

as

supporting

too

author-centred

a

standard,

the

creativ-

Law

Bytes Toronto Star,

22

March

2004,

/

mar222OO4.html>.

3 See

Gervais,

above

note

2 at

155.

4

Copyright Act,

R.S.C.

1985,

c.

€-42,

.

5

On the

struggle

between

the

sweat

of the

brow

and

creativity

schools,

see

Abra-

ham

Drassinower,

"Sweat

of the

Brow,

Creativity,

and

Authorship:

On

Original-

ity

in

Canadian

Copyright

Law"

(2004)

i

UOLTJ 105,

.

ca/techlaw/resc/UOLTJ_i.i&2.doc%2O5%28Drassinower%29.pdf>

[Drassino-

wer,

"On

Originality"].

Taking

User

Rights Seriously

463

Chapter Sixteen