CCA Bulletin 43/06
Ottawa,
October 19, 2006
Copyright
and the Supreme Court – A Delicate Balance
Just the
Facts
On October 12, 2006,
the Supreme Court of Canada ruled on a long-standing dispute
between freelance writer Heather Robertson and a consortium
of newspaper publishers.
The
issue centred around the manner in which newspapers have reproduced
the work of freelance writers in a variety of electronic databases
without the specific permission of the author or any recognition
of an electronic publishing right.
The
Supreme Court justices were faced with the difficult task
of reconciling the individual rights of the freelance authors
with the collective rights of the newspaper publishers.
Ms.
Robertson had argued that without a specific written agreement
with the author, the reprinting of articles in an electronic
format constituted a violation of the Copyright Act and a
breech of the moral and economic rights of the creator.
In
essence, the complex judgement from the Supreme Court affirms
the right of the freelance author to decide whether or not
the publisher can reproduce a work in another format than
the original newspaper article. However, the Court also notes
that such permission need not be in writing, but could be
an understanding between the author and the publisher.
The
case centred around three electronic formats:
- Info Globe Online
- CPI.Q
- CD-ROMs which assemble archival material
from the Globe and Mail
The
final assessment of the Court is that the Info Globe Online
and CPI.Q are clear departures from the collective reproductions
in a new format, while the archival CD-ROMs are protected
by the collective rights of the newspaper publisher. Reproductions
in Info Globe Online and CPI.Q have been deemed to be infringements
of the rights of the freelance writer.
Tell Me
More
Ms.
Robertson is a member of the Writers'
Union of Canada and the Professional
Writers Association of Canada. Both of these organizations
have issued media releases detailing their reactions to the
judgement.
The
Court
decision is a complex batch of reasonings by the Justices
and runs to 22 pages.
The
Court considers the technological neutrality of the Copyright
Act to mean,
"that
the Copyright Act should continue to apply in different
media, including more technologically advanced ones. But
it does not mean that once a work is converted into electronic
data anything can be done with it. The resulting work must
still conform to the exigencies of the Copyright Act. Media
neutrality is not a license to override the rights of the
authors - it exists to protect the rights of authors and
others as technology evolves."
The
question of technological neutrality is a central issue as
is the balancing of the rights of the newspaper publishers
and those of freelance writers. The Supreme Court has delivered
a decision that does not completely resolve this dispute,
sending it back to Court for the cross-appeal and in doing
so, made sure that this issue will continue to develop. However,
the Court has established some clearer interpretations of
technological neutrality and the rights of both freelance
writers and those of newspaper publishers.
Neither
side is entirely happy with the decision of the Supreme Court.
However, both should take comfort in the appreciation and
defence of the rights of creators and copyright owners so
clearly evident in this ruling.
What is
Next?
Copyright
is one of those topics that either inspires terrific enthusiasm
or total boredom. But one thing is sure: it is a most important
component of the ecology of arts and culture! In the coming
weeks (months?) it is expected that the government will table
draft legislation bringing further revisions to the Copyright
Act.
It
is reasonable to expect that the traditional battles between
those who consider copyright to be an archaic concept impeding
the free flow of information and those who view it as an essential
economic and moral prerogative of creators will join the battle
anew.
The
CCA will be following the developments of any subsequent court
dealing on the Robertson issue and the proposed copyright
revisions with great attention.
Quick
update on the Child Fitness Tax Credit file
As
you will no doubt remember the CCA has produced, at the invitation
of the Minister of Finances, the Honourable Jim Flaherty,
a
brief outlining the reasons for which it would make sense
for the government, in the context of its supporting Canadian
families, to extend to a number of artistic training activities
the $500 tax credit it has promised to families who enrol
children under 16 into physical fitness activities.
The CCA also participated
with a group of other civil society organizations in a
consultation on September 15 held by the government appointed
Blue Ribbon Panel on the Child Fitness Tax Credit, which according
to the federal budget, is due to become effective on January
1, 2007. The Panel was supposed to present its report to the
Minister of Finances by October 6, but it turns out that it
has received so many interventions by interested parties (over
a 1000!) that it could not meet that deadline and had to ask
for an extension. We will keep you posted on this file, which
is one of the CCA short term priorities.
|
