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Thursday, November 30, 2006

considered opinion

It has been a little over a month since the Supreme Court of Canada released their decision in the Heather Robertson v. Thomson Corp. appeal. Since that day, there has been a great deal of discussion among writers (and publishers) about the meaning of the decision and its implications for the industry going forward. PWAC recently participated in a roundtable discussion at the Ontario Bar Association on this topic, and as is so often the case in the world of copyright, we came away with the sense that the discussion is nowhere near finished.

To help in everyone's understanding of just what was and what wasn't decided on October 12th, we present the following considered analysis of the decision, written by Warren Sheffer of Hebb & Sheffer, a Toronto law firm deeply involved in copyright and the cultural industries. This report was originally written for copyright lawyer Lesley Ellen Harris' website and copyright newsletter, and is republished here with her kind permission. You can subscribe to Lesley Ellen Harris' newsletter at her website.

Among those of Mr. Sheffer's insights PWAC finds particularly interesting is this bit (emphasis ours):

Notably, the majority, which seems to have been ultimately determined by the swing vote of the Court’s newest judge, Justice Rothstein, did not adopt a utilitarian perspective on Canadian copyright law that the Court had early expressed in its seminal 2002 decision Théberge v. Galerie d’Art du Petit Champlain inc. (In this case, artist Claude Théberge took exception to his art being chemically lifted off paper posters and transferred onto canvasses without permission, an act that the Court, by a slim 4-3 majority, found did not violate Théberge’s copyright). Accordingly, it would appear that the Supreme Court is not prepared to embrace fully a utilitarian approach to copyright law, or put differently, it does not appear that the Court will abandon or ignore the author’s right perspective on copyright espoused by the minority in Théberge. Where the latter perspective is generally more favourable to authors and artists and is rooted in the belief that copyright is granted to creators as a matter of natural justice...

Download the full report as a PDF below:

Writers' Rights Upheld



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