In an important new copyright decision, the Supreme Court of Canada reaffirmed its commitment to the principles of users rights and technological neutrality–principles which have made Canada a world leader in balanced copyright and support for controlled digital lending (CDL) by libraries.
For many years now, the Supreme Court of Canada has emphasized the importance of these two principles in striking the proper copyright balance. With respect to user’s rights, the Supreme Court has held that exceptions and limitations to copyright are not mere loopholes–they are affirmative user’s rights. This means that copyright is not about maximizing the economic interests of publishers or anyone else, but instead about advancing the public good by seeking “the proper balance between the rights of a copyright owner and users’ interests.” With respect to technological neutrality, the Supreme Court has held that the Copyright Act must be interpreted in view of the principle of technological neutrality, according to which “[w]hat matters is what the user receives, not how the user receives it.” This means that, in general, the courts should “interpret the Copyright Act in a way that avoids imposing an additional layer of protections and fees based solely on the method of delivery of the work to the end user.” These principles have been particularly important for Canadian libraries and their patrons, supporting CDL and other important library practices there.
In many ways, these principles seem like good old fashioned common sense. But publishers and others have long claimed that these user rights and technological neutrality “pose a direct threat” to their economic interests. In the new case, SOCAN v. ESA, these arguments were once again brought before the Supreme Court of Canada–and once again rejected.
As Professor Michael Geist has noted, the case:
provides a further entrenchment of Canadian copyright jurisprudence that holds users’ rights and the copyright balance as foundational elements of the law. . . . the court’s support for these principles is not obiter, rhetoric, or likely to change. Indeed, copyright lobby groups have spent much of the past two decades in denial, convinced that somehow the growing body of Supreme Court copyright cases will be reversed the next time the court confronts the issue. That has now led to multiple defeats at Canada’s highest court by copyright collectives such as Access Copyright and SOCAN. In each case, the core copyright principles have remained unchanged. Indeed, if anything, they have become more solidified as precedent builds upon precedent. Given these outcomes and last week’s SOCAN v. ESA decision, it is long past time for these groups to engage in copyright policy based on the realities of balance, users’ rights, and technological neutrality.
These principles–and a balanced approach overall–allow libraries in Canada to continue to fulfill their mission in the digital age, and allow ordinary citizens access to quality information, all while supporting a thriving creative industry at home and abroad.