How tech law principles are starting to mould copyright
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 Canadian decisions could have come straight out of the pages of the Hargreaves Review. They stressed the need in copyright for:
"a balance between promoting the public interest in the encouragement and dissemination of works of the arts and the intellect and obtaining a just reward for the creator, which requires recognising the 'limited nature' of creators' rights (SOCAN v Bell Canada  SCC 36 at , quoting the 2002 SCC case of Theberge.)
"a move away from an earlier, author-centric view which focused on the exclusive right of authors and copyright owners to control how their works were used in the marketplace... Theberge focused attention instead on the importance copyright plays in promoting the public interest, and emphasized that the dissemination of artistic works is central to developing a robustly cultured and intellectual public domain."
The Canadian decisions also evince, in common with the ECJ's UsedSoft decision, a desire to mould copyright in the digital and online area so that it applies in the way that it did (and still does) to physical copies. "The traditional balance between authors and users should be preserved in the digital environment." ESA v SOCAN 2012 SCC 34 at .
It also gives copyright owners more far-reaching control over online consumer behaviour compared with offline and provides new opportunities to extract royalties. It was an attempt to double-dip royalties for downloaded online games that provoked the disfavour of the Canadian Supreme Court in ESA v SOCAN.
"requires that the Copyright Act apply equally between traditional and more technologically advanced forms of the same media. In our view, there is no practical difference between buying a durable copy of the work in a store, receiving a copy in the mail, or downloading an identical copy using the Internet. The Internet is simply a technological taxi that delivers a durable copy of the same work to the end user." (ESA v SOCAN)
It is, probably, no coincidence that these user-centric decisions were made in cases concerning tariff-setting and an attempt to control further dealings in legitimately purchased items. In these cases the rightsholders' positions could easily be portrayed as unmeritorious attempts to reap an advantage from an over-technical application of copyright. In piracy cases, on the other hand, rightsholders can reckon on a more sympathetic audience for pleas that expansive rights and remedies are required in order to restrain unbridled infringement.