Meera Nair

Our Chief Justice

In Posts on June 1, 2010 at 9:37 pm

Today was an eventful day. Ministers Clement and Moore set the stage for amendment to the Copyright Act with their op/ed in the National Post. The Ministers emphasized the importance of facilitating creative effort in Canada. To that end, the Parliamentary process for amending the Act has begun with the Notice Paper.

But something more significant was happening elsewhere. The Canadian Club of Toronto honoured Chief Justice Beverley McLachlin as the 2010 Canadian of the Year. The award is presented to individuals who have, “improved the lives of others and benefited us as a nation.” The Chief Justice oversaw some landmark moments in Canadian copyright history, the most critical being the CCH Canadian case of 2004. CCH Canadian confirmed the individuality of every instance of fair dealing, provided a framework of exploration for each dealing, and emphasized that fair dealing was an integral part of copyright law. However, the case also addressed originality. At issue was whether the headnotes summarizing court cases were sufficiently original to quality for copyright.

Writing for the Court, the Chief Justice’s explanation of original pierces through to the reality of intellectual endeavor and she is quite explicit as to where such endeavor arises from:

When courts adopt a standard of originality requiring only that something be more than a mere copy or that someone simply show industriousness to ground copyright in a work, they tip the scale in favour of the author’s or creator’s rights, at the loss of society’s interest in maintaining a robust public domain that could help foster future creative innovation. … By way of contrast, when an author must exercise skill and judgment to ground originality in a work, there is a safeguard against the author being overcompensated for his or her work. This helps ensure that there is room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others [Para. 23].

The term public domain is also not defined in our Act. Connotation of the phrase ranges from the benign (that which is freely available to the public) to an aura of degradation (to fall into the public domain implies a loss of stature). Common to both interpretations is the belief that material in the public domain is absent copyright, either through expiry or ineligibility. As I have noted the World Intellectual Property Organization defines the public domain as, “… the realm of works which can be exploited by everybody without any authorization.” This includes work lacking copyright protection, however, it also includes currently copyrighted material accessed in accordance with exceptions detailed in our Act. Including fair dealing.

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