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

[microlenz(at)earthlink.net]

ADEENDA- And if legal footnotes are arcane to no lawyers as software is to non-
computer scienctist...how about legal formats between countries for Lawyers!

From:           	Richard Hartman <hartman@onetouch.com>
To:             	"'dvd-discuss@eon.law.harvard.edu'" <dvd-
discuss@eon.law.harvard.edu>
Subject:        	RE: [dvd-discuss] Key case restores copyright balance
Date sent:      	Fri, 19 Apr 2002 15:53:40 -0700
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> 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.
> > 
> > -- 
> >