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.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Are The Courts Finally Trying To Bring Some Balance Back To Copyright?”

Subscribe: RSS Leave a comment
29 Comments
TtfnJohnsays:

Patiently awaits the trolls

I’m actually surprised they haven’t shown up yet.

They’ll show up saying this will cripple the Canadian arts scene with is quite lively particularly on the music side, even for the labels.

Then we’ll have another dull, ignorant discussion of CanCon which, outside of network television seems to have outlived its usefulness.

Then all the labels and other Big Hollywood companies fleeing back to California.

And so it predictably goes ๐Ÿ™‚

Oh yeah, and how Bill C-11 will negate the rulings of the SCC which, for the most part it won’t do. Where that does look like that I can see the PMOs gnomes in my head madly writing regulations pursuant to the act that will reduce that effect and writing up a bill to amend C-11 so it falls into line.

The best thing though is that the SCC made it clear that fair dealing is a right of the consumer not a privilege that can be turned on and off like a tap. ๐Ÿ™‚

Now, if I could only turn off the IP extremists with a tap ๐Ÿ™‚

Anonymoussays:

Re: Re: Patiently awaits the trolls

I’m thinking more of the trolls whining that the definition of fair use has expanded while the definition of copyright hasn’t changed, conveniently ignoring how they’ve been consistently adding extensions and laws for the last 30 years and how certain individuals (chefs, CEOs) demanded SOPA for shutting down things they don’t like.

Yeah, I’m surprised they haven’t shown up yet. Probably still gleefully rubbing their hands at how they insisted that life + 70 years is reasonable in the other thread and that people with dementia can kiss their corporate posterior (corposterior?).

Ninjasays:

Re: Re: Patiently awaits the trolls

I can give you a preview with explaining notes in italics.

[troll]
Yet another article of yellow journalism from Pirate Mike & Co (notice how the ignores that it was actually Glynn Who wrote. Also, he uses the flavor word of the month). Everybody knows Michael Geist is a piracy apologist but it fits well with Techdirt’s bad and biased journalism. (here is a classic example of brushing aside an expert in copyright that is known throughout the world) It is obvious that piracy is destroying the creative sector(hyperbolic bs fed him by his masters and the mainstream media. Also, he gangs together in the movies and music sector tech industries against whom he will complain next) otherwise Elton John and other artists wouldn’t have written letters and asked for help against the freetards that freeload on their hard work. (observe how he completely ignores less famous artists and ignores the fact that those famous musicians already earn shitloads of money despite any piracy. He also uses more of his favorite attack words.) You and your big tech friends, GOOGLE, have profited for too long from the work of others (told you he was gonna put Google in the middle) the old days of the wild lawless web are over. Get used to it. (he’s repeating this for the last few years and I’ve yet to see concrete evidence that anything chagned)
[/troll]

Anonymoussays:

Geist is reading way more into it than is there, while at the same time ignoring how you got there.

The fees issue is pretty simple: in return for NOT enforcing the copyright laws strictly in Canada (permitting to some level P2P file sharing, example), there was a levee put on blank disks and such.

Now the courts have taken a bite out of that, so the balance have to be reset.

anonsays:

flopyright

Just look at the eBook market to see how the consumer is being ripped of. No wonder most of the people i know read only free books or books that they manage to get from torrent sites. If i had to follow my reading pattern before the eBooks became available i would need roughly ?1500 a year more than i spent previously.And this price is after publishers have started saving a fortune in making physical books. So they expect a 5000% increase in pure profit but i must just accept that i cannot afford to read as much as i used to.

If this does not show the publishers and authors why people pirate nothing will.

Now lets say the publishers made all books irrespective of author ?1 , well i would be able to spend what i did before and they would be increasing there total profit by only a few hundred percent. Yes they would make more profit as more and more people are turning back to reading with the invention of the Kindle and other book readers.

But greed is something that makes people blind to the facts as they are, and those who only thing about how much they can make most times miss great opportunities. I mean where would the movie industry be if they had been allowed to stop home viewing via vhs dvd etc.

But they will be dragged into changing, they have no choice, technology demands they change and if they resist it will only be there loss as more and more people find alternative means to get what they want.

bobsays:

The public is filled with creators

The constant drumbeat around here is that vast public supposedly has their interests largely in line with Big Search and Big Hardware. They want everything for free and they’re happy to let anyone but the real creators make money.

In reality, almost everyone on the planet creates copyrighted material every day. (Well, except perhaps for those in a coma or sleeping off a long bender.) Most of this material may not be worth reproducing, but I contend that the public wants to maintain control of their work just like the RIAA or the MPAA.

Ask any member of the public about whether a big multinational should be able to just take an image from flickr and use it for an ad. I bet 99% of the public would take the same position as the MPAA or the RIAA on this matter.

The fact is that copyright is rarely enforced at all. If you want to give it balance, you could clamp down on the billionaires at Big Search.

Ninjasays:

Re: Re: The public is filled with creators

I tried to do some bob-style trolling above but I can’t outpace you, bob. You are just too good at it.

Techdirt provides plenty examples of artists that give away for free and get tons of money from their fans in return. Come back to reality, put your feet on the ground. Your fantasy is quite far from it.

Re: Re: The public is filled with creators

“The constant drumbeat around here is that vast public []want everything for free and they’re happy to let anyone but the real creators make money.”

Bob, read back on the comments, not just this thread, but practically every thread here.
The constant drumbeat around here is “make your content available without DRM, without senseless regional windows and at a reasonable price and we will gladly pay for it.”

We know it costs money to create stuff, hell most of us do it to one extent or another anyway, and we’re happy to contribute to artists who are creating stuff (hence all the kickstarter and pledge stories).

What people are unhappy about is the constant over-reach of legacy industries and their attempts to set back technological progress.

There are a few people who readily admit to pirating stuff sure, but these fall into 2 predominant camps:
a) those who are unserved by a decent legal alternative
and
b) those who are pirating just to stick two fingers up at the legacy industries.
Only one of these is a lost sale. The good news is that it’s the one that’s easy to address.

Anonymoussays:

Re: Re: Re: Re: The public is filled with creators

“The constant drumbeat around here is “make your content available without DRM, without senseless regional windows and at a reasonable price and we will gladly pay for it.””

Drew, the issue is that the “reasonable price” isn’t reasonable. It’s far from reasonable, it’s a pittance, not enough to keep the lights on for most.

There is no end of people on here losing their shizz over 99 cent downloads. They think they should be pennies, not nearly a dollar.

They lose their shizz over regional windows, even through they are not willing to pay in their market what it would cost to bring that content to them legally.

The drumbeat is one of unreasonableness – comparing regulated, legal businesses with shysters, rip off artists, and yes, pirates.

There’s not much to add, except things actually cost money to make. Does that register on your mind?

Re: Re: Re: Re: Re: Re: The public is filled with creators

that 99c which would be a days wage for about 40% of the globe?
Once again, no-one cares what a product costs to produce.
A reasonable price is what your customers are willing to pay. If you can’t provide a product at that price then you need to change your business model or find a new business.
I’m slightly curious as to whether you’re lumping the shysters and rip-off artists in with the pirates or the legacy industries though?

Anonymoussays:

Re: Re: Re: Re: The public is filled with creators

“The constant drumbeat around here is “make your content available without DRM, without senseless regional windows and at a reasonable price and we will gladly pay for it.””

Drew, the issue is that the “reasonable price” isn’t reasonable. It’s far from reasonable, it’s a pittance, not enough to keep the lights on for most.

There is no end of people on here losing their shizz over 99 cent downloads. They think they should be pennies, not nearly a dollar.

They lose their shizz over regional windows, even through they are not willing to pay in their market what it would cost to bring that content to them legally.

The drumbeat is one of unreasonableness – comparing regulated, legal businesses with shysters, rip off artists, and yes, pirates.

There’s not much to add, except things actually cost money to make. Does that register on your mind?

gnudistsays:

Re: Re: The public is filled with creators

You do realize this means the pro sharing crowd are content creators, thus weakening yuur arguements?

Richard Stallman, the founder of the free(as in speech) software movement did some damn fine proggramming work and has authored many philosophy pages on the subject of software freedom.

Nina Paley, who did that awesome sita sings the blues movie also has issues with copyright, including the problems it caused in the creation of her own work.

The writers of against intellectual monopoly are creators just by virtue of writing a book against copyright.

And so on.

Anonymoussays:

Re: Re: The public is filled with creators

This is rich coming from someone who has a burning hatred for libraries, of all things.

The public has interests in line with the public. Piss them off by restricting their access or calling them all filthy thieves, and guess what, they won’t support you. You might not accept this at first, paywall bob, but if you spend a decade going after the man on the street, said man is less likely to support you.

The RIAA is still harping on CD sales. Most of us are talking singles or streaming. But go on, you can leave your head stuck in the RIAA’s ass and believe that they still have your interests at heart, you John-Steele-defending “independent producer”.

kensays:

Copyright a millstone around creators necks

The copyright imbalance is not in favor of creators. In fact our copyright and patent laws are a mill stone around creators necks. We do not have freedom to create. The song writer, the author, the painter, nor the inventor is free to express whatever they want. They must first traverse a minefield of copyrighted and patented works forever fearing that someone somewhere will accuse them of infringing.

Who copyright benefits are the non-creators who make a living off of other peoples work and who can afford to hire lawyers.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop ยป

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Report this ad??|??Hide Techdirt ads
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...
Older Stuff
12:25 Australian Privacy Commissioner Says 7-Eleven Broke Privacy Laws By Scanning Customers' Faces At Survey Kiosks (6)
10:50 Missouri Governor Doubles Down On 'View Source' Hacking Claim; PAC Now Fundraising Over This Bizarrely Stupid Claim (45)
10:45 Daily Deal: The All-in-One Microsoft, Cybersecurity, And Python Exam Prep Training Bundle (0)
09:43 Want To Understand Why U.S. Broadband Sucks? Look At Frontier Communications In Wisconsin, West Virginia (8)
05:36 Massachusetts College Decides Criticizing The Chinese Government Is Hate Speech, Suspends Conservative Student Group (71)
19:57 Le Tigre Sues Barry Mann To Stop Copyright Threats Over Song, Lights Barry Mann On Fire As Well (21)
16:07 Court Says City Of Baltimore's 'Heckler's Veto' Of An Anti-Catholic Rally Violates The First Amendment (15)
13:37 Two Years Later, Judge Finally Realizes That A CDN Provider Is Not Liable For Copyright Infringement On Websites (21)
12:19 Chicago Court Gets Its Prior Restraint On, Tells Police Union Head To STFU About City's Vaccine Mandate (158)
10:55 Verizon 'Visible' Wireless Accounts Hacked, Exploited To Buy New iPhones (8)
10:50 Daily Deal: The MacOS 11 Course (0)
07:55 Suing Social Media Sites Over Acts Of Terrorism Continues To Be A Losing Bet, As 11th Circuit Dumps Another Flawed Lawsuit (11)
02:51 Trump Announces His Own Social Network, 'Truth Social,' Which Says It Can Kick Off Users For Any Reason (And Already Is) (100)
19:51 Facebook AI Moderation Continues To Suck Because Moderation At Scale Is Impossible (26)
16:12 Content Moderation Case Studies: Snapchat Disables GIPHY Integration After Racist 'Sticker' Is Discovered (2018) (11)
13:54 Arlo Makes Live Customer Service A Luxury Option (8)
12:05 Delta Proudly Announces Its Participation In The DHS's Expanded Biometric Collection Program (5)
11:03 LinkedIn (Mostly) Exits China, Citing Escalating Demands For Censorship (14)
10:57 Daily Deal: The Python, Git, And YAML Bundle (0)
09:37 British Telecom Wants Netflix To Pay A Tax Simply Because Squid Game Is Popular (32)
06:41 Report: Client-Side Scanning Is An Insecure Nightmare Just Waiting To Be Exploited By Governments (35)
20:38 MLB In Talks To Offer Streaming For All Teams' Home Games In-Market Even Without A Cable Subscription (10)
15:55 Appeals Court Says Couple's Lawsuit Over Bogus Vehicle Forfeiture Can Continue (15)
13:30 Techdirt Podcast Episode 301: Scarcity, Abundance & NFTs (0)
12:03 Hollywood Is Betting On Filtering Mandates, But Working Copyright Algorithms Simply Don't Exist (66)
10:45 Introducing The Techdirt Insider Discord (4)
10:40 Daily Deal: The Dynamic 2021 DevOps Training Bundle (0)
09:29 Criminalizing Teens' Google Searches Is Just How The UK's Anti-Cybercrime Programs Roll (19)
06:29 Canon Sued For Disabling Printer Scanners When Devices Run Out Of Ink (41)
20:51 Copyright Law Discriminating Against The Blind Finally Struck Down By Court In South Africa (7)
More arrow