RE: [dvd-discuss] Key case restores copyright balance

[Richard Hartman <hartman(at)onetouch.com>]

I'm not sure about something ... either others are misinterpreting
the ruling, or I am misinterpreting what others have said.

I _think_ that people have been saying that the supreme court
found this transfer legal and not in violation of the artist's
rights.  That is not what I find in the ruling.

Although they found that no reproduction occurred (the original
poster was left blank) they found nonetheless that the artist's 
rights _were_ infringed, albiet for a somewhat different reason.  

Since a "work" is fixed in a medium, by substituting mediums (canvas 
for paper) they violated the artists rights to determine the form
of the work which he was releaseing.  

<blockquote>

   By expressly confining the rights that were assigned to producing
reproductions of his works on paper, the respondent therefore retained all
his
rights to produce reproductions on any other medium whatsoever.  By
transferring
posters of the respondent's works onto canvas, the appellants did in fact
reproduce the respondent's works or a substantial part thereof in any
material
form whatever, contrary to s. 3(1) C.A.  The fact that the respondent did
not
consent means that his copyright was infringed.  The appellants had
therefore
engaged in infringement and the respondent was entitled to seize the
canvas-backed reproductions under art. 734(1) C.C.P. and s. 38(1) C.A.

</blockquote>

This is the last paragraph before the "Cases cited" section, and I 
believe that this is the final determination of the court: the
artist wins.

Am I missing something?

-- 
-Richard M. Hartman
hartman@onetouch.com

186,000 mi./sec ... not just a good idea, it's the LAW!


> -----Original Message-----
> From: R. A. Hettinga [mailto:rah@shipwright.com]
> Sent: Friday, April 19, 2002 7:58 AM
> To: dvd-discuss@eon.law.harvard.edu
> Subject: [dvd-discuss] Key case restores copyright balance
> 
> 
> http://www.theglobeandmail.com/servlet/ArticleNews/printarticl
> e/gam/20 
> 020418/TWGEIS
> 
> 
> 
> 
> --------------------------------------------------------------
> ----------
> Key case restores copyright balance
> 
> 
> 
> By MICHAEL GEIST
> 
> 
> Thursday, April 18, 2002 - Print Edition, Page B16
> 
> The view that Canada's copyright law tends to favour content 
> creators may
> soon be put to rest in light of a recent Supreme Court 
> copyright decision.
> 
> ...
> 
> 
> The case involved a challenge by Claude Théberge, an 
> internationally-known
> Quebec painter, against an art gallery that purchased posters of Mr.
> Théberge's work and proceeded to transfer the images found on 
> the posters
> from paper to canvass.
> 
> The gallery's technology was state of the art -- it used a 
> process that
> literally lifted the ink off the poster and transferred it to 
> the canvass.
> The gallery did not create any new images or reproductions of 
> the work,
> since the poster paper was left blank after the process was complete.
> 
> Mr. Théberge was nevertheless outraged -- he believed he had 
> sold paper
> posters, not canvass-based reproductions -- and he proceeded to sue in
> Quebec court, requesting an injunction to stop the transfers 
> as well as the
> seizure of the existing canvass-backed images.
> 
> Although the Quebec Court of Appeal ruled in favour of the seizure, a
> divided Supreme Court overturned that decision, finding that 
> the images
> were merely transferred from one medium to another and not reproduced
> contrary to the Copyright Act.
> 
> In reaching its decision, the Court's comments regarding the 
> importance of
> maintaining a fair copyright balance are particularly noteworthy.
> 
> Writing for the majority of the Court, Justice Ian Binnie 
> stated that "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 . . . Once an authorized copy of a work is 
> sold to a member
> of the public, it is generally for the purchaser, not the author, to
> determine what happens to it."
> 
> Justice Binnie then continued to emphasize the dangers of 
> copyright that
> veers too far toward copyright creators at the expense of the 
> public. He
> noted that "excessive control by holders of copyrights and 
> other forms of
> intellectual property may unduly limit the ability of the 
> public domain to
> incorporate and embellish creative innovation in the 
> long-term interests of
> society as a whole, or create practical obstacles to proper 
> utilization."
> 
> ...
> 
> Supporters of copyright reform have often sought to label 
> their opponents
> as thieves looking for free music or pirated movies. With 
> this decision it
> would appear that the opponents have been joined by a group 
> not so easily
> dismissed: the Supreme Court of Canada.
> Michael Geist is a law professor at the University of Ottawa 
> Law School and
> director of e-commerce law at the law firm Goodmans LLP. His 
> Web site is
> http://www.lawbytes.com.
> mgeist@uottawa.ca
> --------------------------------------------------------------
> ----------
> Copyright © 2002 Bell Globemedia Interactive Inc. All Rights Reserved.
> 
> -- 
>