Copyright and the Supreme Court – A Delicate Balance
CCA Bulletin 43/06
October 19, 2006
- Copyright and the Supreme Court – A Delicate Balance
- Quick update on Child Fitness Tax Credit file
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.