Notable Supreme Court Decisions

During the years 2002-2006, the Supreme Court of Canada issued four decisions that each spoke to the importance of keeping the existing limits upon copyright’s reach.

2002: Copyright as Balance
Théberge v. Galerie d’Art du Petit Champlain inc. 2002 SCC 34
This case concerned a transformation of legally purchased artwork; infringement was the charge, the majority opinion disagreed. They said:

Parliament formulated restrictive provisions which gave the owner of the copyright a certain control power of the uses. There is no general right to control subsequent uses….
The proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature.

2004: Fair Dealing
CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13
This case concerned, amongst other things, a library making photocopies of copyrighted materials (at the request of patrons.) In a unanimous decision, Fair Dealing was held to be an integral part of the law. There were quite a few gems in the decision; here are a few of them

Fair dealing is always available…
Research must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained. …
Research is not limited to non-commercial or private contexts…
The availability of a license is not relevant to deciding whether a dealing has been fair.

2004: ISP Neutrality
Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers, 2004 SCC 45
With an 8-1 decision, the Supreme Court of Canada ruled that ISPs are not liable if copyrighted material passes through their servers. (The dissenting opinion was related to a question of territoriality.):

[The Canadian] Parliament made a policy distinction between those who abuse the Internet to obtain ‘cheap music’ and those who are part of the infrastructure of the Internet itself. It is clear that Parliament did not want copyright disputes between creators and users to be visited on the heads of the Internet intermediaries, whose continued expansion and development is considered vital to national economic growth.

2006: The Limited Reach of Copyright
Robertson v. Thomson 2006 SCC 43
A freelance journalistic objected to the inclusion of her work in a CD-ROM of the publishing newspaper, and in two databases. The court grappled with the question: where are the boundaries to copyright in the individual work, and the publisher’s compilation? Both the majority and minority opinions expressed the view that copyright is a limited right, AND, that transformation into a new medium did not recast the ambit of that right. Taken together, it is a strong rebuttal to those who continue to insist that digital works have absolute copyright.