Are The Courts Finally Trying To Bring Some Balance Back To Copyright?

from the technological-neutrality dept

One of the recurrent themes here on Techdirt is the increasing lack of balance in copyright, which is now heavily weighted in favor of creators and their proxies, and against the public. That bias has come about thanks to the rise of the Internet, which has turned the traditionally rather specialist area of copyright law and enforcement into a matter of everyday concern: it affects practically everything we do online, and can criminalize even the most trivial of activities there.

But there are signs that some judges are starting to recognize this imbalance and -- more importantly -- to do something about it in their rulings. Here's what Graham Smith, a UK lawyer and blogger, had to say on this trend recently: These have been a hectic couple of weeks for copyright. Ten days ago the EU Court of Justice published the UsedSoft decision, which will have us thinking in a completely new way about exhaustion of rights online. On Thursday this week the Canadian Supreme Court delivered five separate copyright judgments on subjects ranging from fair dealing to communication to the public, each in its separate way reinforcing a more user-centric, less author-centric, approach to copyright. The UsedSoft decision was discussed here on Techdirt a few weeks ago, and may allow software and other digital goods to be re-sold within the EU – it's not clear yet how much of an impact this ruling will have. Meanwhile, the judgments from the Canadian Supreme Court are almost certain to re-shape the copyright landscape in that country.

Smith points out that one thing the European and Canadian decisions have in common is a desire to assert "technological neutrality" -- the idea that the move from an analog to a digital world shouldn't see the balance of traditional copyright tipped towards one side or the other: Both the ECJ and the SCC [Supreme Court of Canada] kicked back hard against what they perceived as imbalance between hard copy and digital copyright outcomes. The ECJ strove to achieve 'functional equivalence' between a fully paid permanent download and a sale on physical media. It said that what would otherwise be a communication to the public would be converted into a distribution to the public if a 'transfer of ownership' (defined in economic rather than legal terms) had taken place. The ability to rely on the first sale doctrine in order to acquire second-hand software applied in equivalent situations, regardless of whether the transactions took place on physical media or by download.



The SCC invoked a similar concept of 'technological neutrality' in several of its judgments, two of which together held that the right of communication to the public applied to streaming but not to downloads. The key role of technological neutrality in driving the recent decisions is supported on the Canadian side by Michael Geist, who concluded a series of posts analyzing the implications of the five SCC rulings -- which he termed "the culmination of a ten year transformation of copyright at Canada's highest court" -- as follows: the court frames technological neutrality as a matter of balance within the Copyright Act and as a means to avoid the double dipping that occurs when new fees or restrictions are layered onto new technologies.



The net effect is to firmly reject claims that users' rights is merely a metaphor. In the eyes of the Supreme Court of Canada, it is an essential component of Canadian copyright law that is integral to achieving the purpose of copyright it identified over a decade ago -- a balance that "lies not only in recognizing the creator's rights but in giving due weight to their limited nature."

Let's hope this new recognition of the essential nature of users' rights deepens and spreads to other countries where copyright in the digital age remains seriously out of kilter.

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Filed Under: copyright, courts