Katherine Booth is a first year law student at Osgoode Hall and is taking the Legal Values: Challenges in Intellectual Property course.
Following the Supreme Court’s affirmation in CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339 [CCH], that fair dealing under s. 29 of the Canadian Copyright Act is a user right and not merely a “loophole” to owner rights, the following question arises: on what basis are these user rights justifiable?
Abraham Drassinower addresses this issue by theorizing a normative basis for a freestanding user right (“Authorship as Public Address: On the Specificity of Copyright vis-à-vis Patent and Trade-Mark”, 2008 Mich. St. L. Rev. 199). Authorship, Drassinower argues, presupposes a dialogue between authors and users. On the one hand, authors are users. In creating their work, authors necessarily draw upon pre-existing ideas and re-express them in an original form. On the other hand, users are authors. Because authored works present a dialogue to the public, they inherently engage the user to respond to the work and thus become an author in his or her own right. For Drassinower, then, fairness in copyright fair dealing must be consistent with the equal authorship claims of each party. His “egalitarian ethic of authorship” places natural limits on the extent of author rights, which stop short of preventing the user’s right to reproduce a work as part of the discourse between authors, and clears space for a positive formulation of user rights.
By comparing copyright to patent, Drassinower also expands the basis of user rights to situations that do not involve the user’s own authorship claims, such as research or private study. Unlike patent, copyright protects the form of the expression (“how”) and not the content (“what”). Further, copyright has no novelty requirement and looks only for originality in the expression. It examines the relationship between author and work, not between the work and other existing works. Copyright asks, “Does the expression originate from the author?” Patent asks, “Does this invention already exist?” His comparison reveals that the core of authorship is not the work itself, but the communication of that work to the public. Copyright is therefore limited to protecting the author’s right to the public presentation of his or her work. This does not include the right of exclusive reproduction in the physical sense, but only reproduction in the normative sense. The right to freely use a copyrighted work is present wherever the user does not wrongfully place him or herself in the position of the author; essentially, reproduction is not an infringement of copyright if it occurs in the private context.
Drassinower’s attempt to establish a foundation for a general user right can be criticized on the basis that it may tip the balance too far in favour of users. Although it is relatively easy to accept strong user rights in relation to legal materials, as was the case in CCH, it is perhaps not quite so easy to give them equal footing in the context of more personal copyrighted works. If CCH had been about a music library, would the court have found a user right to reproduce musical recordings for private study? Further, it is unclear how Drassinower’s theory can be reconciled with Court’s finding in CCH that if a work is unpublished, this factor weighs in favour of fair dealing. If the core of authorship is public address, should copyright not protect above all the author’s right to decide whether or not to make his or her work public?
Despite these problems, however, Drassinower’s work is valuable because it offers a principled basis by which users can be incorporated into the copyright debate. This is especially useful in light of fair dealing issues in the context of rapid technological development. It is impossible to anticipate what kinds of unauthorized reproduction of copyrighted materials might be required by, or become commonplace, because of new technologies. In the past, exceptions have been made to accommodate technology (for example, temporary reproduction for the purpose of internet browsing is justified by a theory of implied licence). However, it is inevitable that continued recourse to the public interest, implied licenses, and other justifications for unauthorized reproduction will only create an unwieldy regime of exceptions to copyright. By providing an understanding of the true core of copyright protection (the right to public presentation), Drassinower establishes a positive framework within which user rights exist. He thus presents us with a tool to address novel problems in copyright infringement by looking at whether an activity really does infringe copyright, and not just whether it should be added to a growing list of exceptions.