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The Law & Economics of Copyright Users' Rights in Canada

How the law & economics of copyright users' rights is evolving in the 21st century in Canada.

Jeremy de Beer

on 8 January 2014

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Transcript of The Law & Economics of Copyright Users' Rights in Canada

The Law & Economics of Copyright Users' Rights in Canada
Academic Writing
Vaver, D. (2000), Copyright Law
Supreme Court Trilogy,
"Users' rights are not just loopholes"
Lessons from Canada:
Supreme Court Quintet,
Copyright Modernization Act, 2012
Non-commercial User-generated Content

29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual ... to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if

(a) ... done solely for non-commercial purposes;

(b) the source ....mentioned, if it is reasonable in the circumstances to do so;

(c) ... believe that the existing work ... was not infringing copyright; and

(d) ... does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work ... or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.
Prof. Jeremy de Beer
University of Ottawa, Faculty of Law
Centre for Law, Technology & Society
"If O equals the initial allocation of rights (R) that the Act grants to an owner, and E equals exceptions therefrom, then R = O - E."
"The occasional court has even suggest that 'owner rights' should be interpreted expansively, while 'user exceptions' should be interpreted narrowly.
This latter approach is bad law and bad policy."
p. 170
p. 171
29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.
Long-term process of evolution (~ 15 years)
Scholarship, jurisprudence, legislation, practice intertwined
Courts' economic analysis is theoretical or speculative
Advocates' economic analysis seen sceptically
Academic economic analysis nascent and piecemeal
"[35] In CCH, the Court concluded that since no evidence had been tendered by the publishers of legal works to show that the market for the works had decreased as a result of the copies made by the Great Library, the detrimental impact had not been demonstrated. Similarly, other than the bald fact of a decline in sales over 20 years, there is no evidence from Access Copyright demonstrating any link between photocopying short excerpts and the decline in textbook sales."
Alberta (Education) v Access Copyright,
2012 SCC 37
"[48] ... Because of their short duration and degraded quality, it can hardly be said that previews are in competition with downloads of the work itself. And since the effect of previews is to increase the sale and therefore the dissemination of copyrighted musical works thereby generating remuneration to their creators, it cannot be said that they have a negative impact on the work."
SOCAN v Bell Canada,
2012 SCC 36
"As Professor Vaver, supra, has explained, at p. 171: “User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.”
CCH v Law Society of Upper Canada,
2004 SCC 13
88 [SOCAN] contends that s. 2.4(1)(b) is an exemption from liability and should be read narrowly; but this is incorrect. Under the Copyright Act, the rights of the copyright owner and the limitations on those rights should be read together...."
SOCAN v Canadian Assn. of Internet Providers,
2004 SCC 36
"31 The proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them."
Théberge v. Galerie d'Art du Petit Champlain ,
2002 SCC 34
Full transcript