economic) of monitoring the vast amount of material moving through the Internet…”
By interpreting the exception in the context of economy and efficiency, the Court clarified an important aspect about Canadian copyright law. In the end, the law is not there to protect authors or copyright owners at all costs. The law is there, largely to incentivise creation for the public benefit. Protection is part of that larger objective, but it is far from the primary or overarching purpose of the law. The Trilogy of cases, with CCH as the beacon, has long stood as a key source of determining the purposes and objectives of Canadian copyright law. The Supreme Court does not hesitate to reiterate these principles whenever the occasion arises, such as in Keatley Surveying Ltd v Teranet .
Keatley Surveying Ltd v Teranet Inc., 2019 SCC 43
The Province of Ontario operates a land registry which offers survey plans for access and download. The registry is operated by Teranet Inc. Keatley Surveying is a surveying company that sought to bring a class action against Teranet for reproducing survey plans in the registry. The common issue between the parties was whether the survey plans were protected by Crown copyright under section 12 of the Act. The dispute served as an opportunity for the Supreme
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Court of Canada to provide an update on the purposes and objectives of Canadian copyright law. Justice Abella, writing for the majority, writes: [44] This Court’s post-Théberge jurisprudence has sought to calibrate the appropriate balance between creators’ rights and users’ rights. This balance infused the Court’s treatment of fair dealing in CCH, for example, where McLachlin C.J. noted that “the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence . . . . The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right”… [45] In Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36, [2012] 2 S.C.R. 326(SOCAN), and Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, [2012] 2 S.C.R. 345, the Court confirmed that fair dealing — and users’ rights — are to be given a large and liberal interpretation. In SOCAN, the Court emphasized the vital role played by users’ rights in promoting the public interest. The ability to access and use “works” within the meaning of the Copyright Act, are “central to developing a robustly cultured and intellectual public domain”… [46] Fair dealing is, of course, only one component of Canada’s copyright law. It is, however, an emblematic one as it presents a clear snapshot of the general approach to copyright law in Canada — an approach which balances the rights of creators of works and their users…
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Justice Abella’s summary of the law’s development is telling. It shows that since the early intimations of the balance to be struck in Canadian copyright law from the trilogy cases, a complementary framework of rights and principles has developed. These are user rights. This is a recognition that a robust public domain does not happen by accident. It requires careful nourishing and protection from the law, and this too is part of the purposes and objectives of Canadian copyright law.
III. History and International Harmonisation of Copyright
a. History
As alluded to above, Canadian copyright law derives primarily from English copyright law, which in turn owes its development to the introduction of the printing press to England in the late 15th century. With the increase in the use of printing presses, authorities in the United Kingdom sought to control the publication of books by granting printers a near monopoly on publishing in England. This was one of the earliest examples of technological advancement resulting in the progressive development of copyright laws. It led to the UK Licensing Act of 1662. It did not aim to protect publishers, let alone authors, but rather to ensure a certain government censorship over the publications in circulation. The Licensing Act established a register of licensed books to be administered by the Stationers’ Company, a type of guild, which consisted of a group of printers with the authority to censor publications. The 1662 Act expired in 1695, leading to a relaxation of government censorship, and in 1710 Parliament enacted the Statute of Anne to address the concerns of English booksellers and printers. By moving beyond
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mere censorship and into a regime of property rights, the Statute of Anne is widely credited for being the earliest iteration of modern copyright legislation. The Statute of Anne established the longstanding copyright principles of authors’ ownership of copyright and a fixed term of protection of copyrighted works. It provided for a fourteen-year term of protection, and renewable for fourteen more if the author was alive upon expiration of the initial term. By imposing these measures, the Statute of Anne prevented a monopoly on the part of the booksellers. In limiting the term of copyright, the Statute also created a “public domain” for literature. The Statute also ensured that once a published work was purchased, the copyright owner no longer had control over its use or sale to a third party. This latter tenet of copyright policy would later become known as the principle of “exhaustion”. As foundational as the Statute of Anne was for the overall development of copyright law, some key dimensions of modern copyright laws had not yet coalesced. While the Statute did provide for an author’s copyright, the benefit of this right was minimal because in order to be paid for a work, an author had to first assign it to a bookseller or publisher. As such, the first iteration of copyright law envisioned by the Statute of Anne placed publishers in an influential and essential position in the overall framework of rights. To use an analogy to real property law, the rights envisioned by the Statute of Anne were occasioned by significant restraints on alienation.
b. International Harmonisation
Despite the existence of numerous multilateral and bilateral agreements affecting the development of copyright around the world, the implementation and enforcement of copyright protection remains a matter of national jurisdiction. As a corollary,
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no creative or artistic work is capable of automatic “international protection”. Rather, copyright must be asserted by the rights holder in each relevant jurisdiction. Nevertheless, international instruments have played a significant role in shaping standards of protection and the extent of rights under the copyright umbrella. Further, reforms to national legislation in Canada and in other countries have been influenced strongly by these developments at the international level. To better understand the relationship between international agreements and Canadian copyright law, key international instruments and their context are presented below: Berne Convention for the Protection of Literary and Artistic Works (1886) The Berne Convention was the first (and remains the most influential) multilateral agreement addressing copyright. As early as 1886, states such as Belgium, France, Germany, Great Britain, Italy, Spain, Switzerland agreed to a comprehensive framework which set basic standards of protection for copyright. The impetus for such an effort for copyright has much to do with history and trade at the time. This was an era marked by fierce nationalism and, among other things, the production and trade of translated books. To the dismay of many authors and publishers, translated books were often sold in foreign jurisdictions in the absence of any royalties or copyright. It was in this context that states got together to establish reciprocal protections and minimum standards of copyright protection. The Berne Convention establishes the “Berne Union” of states, which agreed to collectively enact copyright laws that would ensure uniform and minimum standards of protection among its members. The main tenets established by the Berne Convention in this respect are threefold: The first is to establish a minimum term of protection for works, measured by the life of the (longest living) author (in case of joint authorship), plus fifty years after their death [Article 7]. The second is the prohibition on formal requirements for the recognition or exercise of copyrights [Article 5(2)].
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