Use of Copyright Content on the Internet: Considerations on Excludability and Collective Licensing
| Author | Daniel J. Gervais |
| Pages | 517-549 |
hh
Daniel
J.
Gervais
A.
INTRODUCTION
The
Internet
has
been
a
catalyst
for
problems
latent
within
the
copyright
system.
Among
the
questions
that
can no
longer
be
swept under
the
policy
carpet,
one
could mention whether copyright should protect certain kind
of
works; what
the
proper originality standard should
be
(and whether
it
would
be
better
to
have
a
uniform international standard); whether
it
makes
sense
to
grant copyright protection
in the
form
of
right "fragments"
delineated
by the
technical
or
physical nature
of the use
made
of a
protected
work
(a
copy,
a
performance,
a
communication
by
wire
or
"Hertzian waves,
"
a
transmission,
an
adaptation,
etc.);1
the
related question
of
which uses
of
protected
works should constitute
an
infringement
of
copyright;
and
last
but not
least, which uses should
be
licensed
and by
whom.
This
last question
has
taken
a
very high profile
in
recent years
in the
face
of the
rightsholders'
recalcitrance
to
license many mass uses
on the
Internet.
Because
digital
technology
usually
requires
a
reproduction
in
order
to
communi-
cate,
perform
or
transmit,
and
possibly
an
adaptation
or
creation
of a
derivative
work,
this
"nature-of-the-use"
approach
which
means
that
a
single
use may in
fact
require
an
authorization under several
rights
fragments
or
headings.
I
recently
suggested
refocusing
the
copyright
rights
away
from
the
technical
nature
of the
use
made
and
towards
the
effect
of the use on the
copyright holder's
market.
See
Daniel Gervais. "The Reverse Three-Step Test: Towards
a New
Core
International
Copyright Norm" (2004)
9
Marquette Intel. Prop.
L. R.
i,
sols/papers.cfm?abstract_id=499924>
[Gervais, "The Reverse Three-Step
Test"].
5*7
EIGHTEEN
I
iwl^l^i
1*^11
1
%J
1
on Excludability and Collectiv
e
IN THE
PUBLIC
INTEREST:
THE
FUTURE
OF
CANADIAN
COPYRIGHT
LAW
At
a
more basic level,
the
question
is
essentially
to
determine
for
whom
and in
what circumstances should copyright prevent
the use of
materi-
al
available
on the
Internet.
To put the
question differently, under what
circumstances
should
a
copyright holder have
a
right
to
exclude
others
from
using
her
copyright work
on the
global network? This
is the
ques-
tion
I
wish
to
examine
in
this
chapter.
The
underlying hypothesis will
be
that
policy analysis concerning copyright
and
other intellectual property
rights
is
shifting because those
rights
are now
facing
a
number
of op-
ponents,
in
most
cases
for the first
time
on
that
scale. Those
opponents
are
other
rights,
including privacy. Clearly, copyright
is not or no
longer
a
closed
system with exceptions looping back
to a set of
exclusive
rights
in
which
an
appropriate equilibrium
in the
regulation
of
knowledge creation
and
dissemination
was
supposed
to be
reached.
Inescapably,
broader
so-
cietal
issues
now
form
part
of the
equation.
I
will begin
the
analysis
in
section
B
with
a
brief look
at the
history
and
purpose
of
copyright.
In
section
C, I
consider more
specifically
the
intersection
of
copyright with
the
private sphere
of
users.
In
section
D,
I
consider possible solutions, bearing
in
mind
that
the
stated
purpose
of
this
book
is to
provide
tools
and
thoughts
on the
ongoing copyright
re-
form
process.
B.
The
first
copyright
statute
in the
United
Kingdom,2
which
was
used
as
Prior
to the
Statute
of
Anne, 1710,
8
Ann.,
c. 19
(Eng.),
there
had
been
no
copy-
right proper. Artists
in
classical
Greece
and the
Roman Empire
did not
seek
personal attribution,
and it was
common
to
identify someone else
(a
teacher,
a
famous person)
as the
"author." During
the
early
and
middle Middle Ages
(approximately
from
the 8th to the
i2th
century), almost
all
artistic works were
created
in
Europe under
the
patronage
of the
Roman Catholic
Church,
which
became
de
facto
the
owner
of all
"works." Michelangelo
was one of the first
art-
ists
under Church patronage
to
insist
on
personal
attribution.
The
insistence
of
the
personal role
of the
author
and the
recognition
of the
link between authors
and
works
is
mostly
a
child
of the
Enlightenment, with, e.g., Kant's (and later
Hegel's)
view
that
the
author
infused
his or her
will into
the
work.
See
Harold
C.
Streibich,
"The Moral Right
of
Ownership
to
Intellectual Property: Part
I -
From
the
Beginning
to the Age of
Printing" (1975)
6
Mem.
St. U. L.
Rev.
i;
Dan
Rosen,
"Artists' Moral Rights:
A
European Evolution,
An
American Revolution" (1983)
2
Cardozo
Arts
&
Ent. L.J. 155; Cheryl Swack, "Safeguarding Artistic Creation
and
the
Cultural Heritage:
A
Comparison
of
Droit Moral Between France
and the
United
States" (1998)
22
Colum.-VLA
J.L.
&
Arts 361.
518
2
A BRIEF LOOK BACK
a
basis
for the
1921 Canadian
Copyright
Act,3
many
parts
of
which have
survived
to
this day,
was
essentially
a
privilege granted
by the
Crown
to
authors
and
publishers
to
prevent reuse
by
other
publishers.4
It
seems
to
have
been derived
from
a
previous
act
designed
to
limit publications
to
authorized
publishers.5
From
its
inception, copyright
was
thus
a
"profes-
sional right":
a
right used
by
professionals against other professionals.
In
fact,
until
the
19903,
copyright
law and
policy
was
aimed
at
professional
entities,
either
legitimate
ones such
as
broadcasters, cable companies
or
distributors;
or
illegitimate ones such
as
makers
and
distributors
of
pirate
cassette
and
later CDs.
In
most cases, these professionals were intermedi-
aries with
no
interest
in the
content itself
(i.e.,
they could have sold shoes
instead
of
music
or
books).
Copyright
remained
a
right
to
prevent professional copying
for a
sig-
nificant
amount
of
time.
A
right
to
"perform
in
public"
was
added when
authors
of
theatrical plays
and
music realized
that
selling sheet music
or
copies
of
their plays represented only
a
small
fraction
of the
commercially
relevant
use of
their
works. Incidentally,
this
is
also
the
time when copy-
right collectives were
formed.6
The
pre-Internet
history
of
copyright
and
authors' rights during
the
twentieth century
was
essentially
that
of the
adaptation
to new
forms
of
creation (e.g., cinema) and, more importantly,
of new
ways
to
disseminate
copyrighted
works (radio, then television broadcasting, cable, satellite).
Canada's
Act
piggybacked
on
foreign
and
international developments
un-
Copy
right Act, 1921, S.C. 11-12 Geo.
V. c. 24;
modified
by
Copyright
Act
Amend-
ment,
13 & 14
Geo.
V, c.
10,
(1923)
(Entered
into
force
i
January
1924);
27
Gaz.
C.
26,
2157.
The
Canadian
Act is
clearly
a
common
law-based
statute
(see
Theberge
v.
Galerie
d'Artdu
Petit
Champlain
inc.,
ca/csc-scc/en/pub/20o2/vol2/html/2oo2scr2_0336.html>,
[Theberge
cited
to
S.C.R.]
at
paras.
62-69).
Certain
commercial
entities
waited
to see
which
books
were
selling
well
and
then
started
to
copy
them.
This
created
a
free-rider
system,
which
was
rather
inef-
ficient from
a
commercial
standpoint:
publishers
had
little
incentive
to
invest
in
the
publication
of new
books
and
authors
were suffering from
the
narrow
band-
width
for the
dissemination
of
their
books.
This
"free"
and
rather
raw
capitalism
thus
led to a
market
failure
in the
book
trade
that
had to be
regulated.
This
is the
argument
made
in L. Ray
Patterson
and
Craig
Joyce,
"Copyright
in
1791:
An
Essay
Concerning
the
Founders'
View
of the
Copyright
Power
Granted
to
Congress
in
Article
I,
Section
8,
Clause
8 of the
U.S.
Constitution"
(2003)
52
Emory
L.J. 909,
at
916.
See
Alana
Maurushat
and
Daniel
Gervais,
"Fragmented
Copyright,
Fragmented
Management:
Proposals
to
Defrag
Copyright
Management
(2003)
2
Can.
J. of L.
&
Tech.
15,
519
Use
of
Copyright Content
on the
Internet
3
4
5
6
Chapter Eighteen
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