By Andrei Mincov (Mincov Law Corporation)
On July 12, 2012, the Supreme Court of Canada issued its reasons in five copyright cases (Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright); Re: Sound v. Motion Picture Theatre Associations of Canada; Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada; and Society of Composers, Authors and Music Publishers of Canada v. Bell Canada).
The results, while quite predictable, are very disappointing for someone who values individual rights, freedom and capitalism.
Howard Knopf in his post A Proud and Progressive Pentalogy Day in Canadian Copyright Law has provided a brief outline of what the five cases stand for. It’s a good summary of what the cases stand for, but I squarely disagree with Mr. Knopf on his conclusions. My issues with his position start with the title, namely the use of the word “progressive”. I trust that the use of it is intentional and is in reference to the progressive movement.
You may or may not agree with Glenn Beck, but the important question to ask when using the word progressive, even outside the political context is, “what are we progressing to?”. In my opinion, we are progressing away from a system where interests of the individual trump interests of the society and towards a system where interests of the “society”, expressed by whoever has the power to claim to be in position to represent such interests, trump interests of each particular individual making up that “society”. This never ends well.
Leaving the technicalities for a future post, I have three big problems with the 5 decisions.
My biggest problem is with paragraphs 9 and 10 of the Bell case, where the Court unanimously held that:
[9] Théberge reflected a move away from an earlier, author-centric view which focused on the exclusive right of authors and copyright owners to control how their works were used in the marketplace: see e.g. Bishop v. Stevens, [1990] 2 S.C.R. 467, at pp. 478-79. Under this former framework, any benefit the public might derive from the copyright system was only “a fortunate by-product of private entitlement”: Carys J. Craig, “Locke, Labour and Limiting the Author’s Right: A Warning against a Lockean Approach to Copyright Law” (2002), 28 Queen’s L.J. 1, at pp. 14-15.
[10] Théberge focused attention instead on the importance copyright plays in promoting the public interest, and emphasized that the dissemination of artistic works is central to developing a robustly cultured and intellectual public domain. As noted by Professor David Vaver, both protection and access must be sensitively balanced in order to achieve this goal: Intellectual Property Law: Copyright, Patents, Trade-marks (2nd ed. 2011), at p. 60.
This is exactly the problem with the current trend. I strongly believe that interests of the public should be completely irrelevant to copyright laws and copyright policy. Whether copyright laws provide any benefits as a “fortunate by-product” or they actually hurt the public does not really matter. What matters is whether those who create something that had not existed before have a chance to offer it to the public on THEIR terms, rather than being forced in a situation where they should either not disclose it to the public or expect the public to dictate such terms.
Notice the difference between a situation when the market forces a manufacturer to lower prices not to be squeezed out by the competition (as in copyright owners voluntarily adopting new models depending on granting access to their works for free) and a situation when the government adopts laws that say that those who really want or need to use the manufacturer’s product are entitled to steal from the manufacturer, but no more than 20% of the manufacturer’s total output (as in the government telling copyright owners they cannot sell their works because the public should have the “user right” to use them for free).
No matter what the Supreme Court of Canada says, copyright is not about access. It’s not about dissemination. It’s not about the royalties. The only thing that copyright is about is control. Take away control and you have slavery, because then the author is in no position to decide on which conditions to offer the results of his work to others. Whether it’s the public, the government or the collective society that decides it – it’s not the most important person in the equation, the author and the copyright owner.
My second big problem is that all five cases regarded copyright in the context of tariffs. Based on the false premise that copyright is about royalties, the Court seems to have used the following logic: “We have all these tariffs. If we decide that this action involves the use of this right recognized by the Copyright Act, then it would mean that it would fall under this or that tariff. Would that be a fair result?”
I understand that the cases WERE about tariffs, and that tariffs are an integral part of the copyright regime in Canada, but tariffs are merely an extension of exclusive rights that authors are supposed to voluntarily delegate to collective societies. Just because a collective society adopted a tariff royally approved by the Copyright Board does not create or destroy exclusive rights.
In the Supreme Court’s reasons, however, the underlying assumption seems to be that the only purpose of authors’ existence is to provide an opportunity for the collective societies to apply tariffs.
This goes back to the priority of the interests of an individual over the collective.
Finally, the Supreme Court further expanded fair dealing. Not only did it endorse the horrific idea of “user rights” previously found in CCH, it went far and beyond by removing even those scarce limitations of what the public could do to exclusive rights of copyright owners if the public feels like it.
In my opinion, most categories of fair dealing should be reduced to presumptions, which a copyright owner can rebut by declaring that the copyright owner does not grant the right to use his works for such purposes that the Copyright Act presumptively considers “fair”.
For example, why do we assume that a library should have the right to carry every single book it feels would benefit the community? Why cannot there be a situation when a copyright owner chooses to disallow libraries to carry the copyright owner’s books? This would happen in dismally small number of cases, so fair dealing would play the role in facilitating the dealings that are supposedly fair. But just because most copyright owners would be OK with such use does not mean that ALL of them would be. Individual rights are not about averages, they are about individuals.
Very seldom a use is truly fair if the copyright owner openly opposes it.
Same goes for the education. Why do we assume that the purpose of educating the next generation of students justifies robbing the current generation of authors and copyright owners of their right to decide if they want to allow teachers to distribute copies of their works to students without paying for it?
In summary, this is a very sad day for Canada. Not because greedy collective societies and big corporations will be able to grab less cash from the “working people” and the “less fortunate among us”. Not because a certain provision of the Copyright Act was interpreted to mean one thing, and not the other.
It is a sad day because it confirms the shift in the paradigm – from protecting individual rights against being infringed by other individuals or the mob, we are “progressively” drifting to laws that are subjecting rights of each individual to the mythical interests of the “whole”.
I have not only studied history, I’ve lived the socialist nightmare. Those of you who think that government-sponsored mass murders can never happen in Canada, think again.
No, just because the Supreme Court of Canada recognized that the fair dealing exception for the purpose of private study also covers non-private study will not be the cause of the government rounding up millions of Canadians and shooting them in the head. But that’s what progressivism is all about. Slowly changing the paradigm. Slowly robbing individuals of their rights… until one day they realize that ALL of their rights are now subject to whether they benefit the rest of the “collective”.
Those cheering today for the victory of the “users” are cheering for their own destruction as holders of individual rights, whatever these rights may be.
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