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.