Respondents owned copyright in various broadcast television programs.
Petitioners made VCRs.
Even unauthorised uses of a copyrighted work are not necessarily infringing.
An unlicensed use of the copyright is not an infringement unless it conflicts with one of the specific exclusive rights conferred by the copyright statute.
Time-shifting for private home use must be characterised as a non-commercial, non-profit activity.
Plaintiffs admitted that no actual harm to their copyrights has occurred to date.
No infringement found.
Dissent argues that when a scholar is refused the ability of fair use, the whole public loses, while if an individual at home is denied, they are the only loser.
Making One Entire Copy
Making a whole copy can never qualify as a “fair” amount.
s. 30(2) allows libraries, archives, or museums to make a single copy for a library user for the purpose of research or private study.
For some reason wasn’t amended to allow that user to make his or her own copy.
Copying Unpublished Works
Any usage by reproduction, public performance, or otherwise under s. 3 of an unpublished work has never been held to qualify as fair.
Many sources agree with this.
There is no statutory limitation to this effect because s. 29 has not expressly limited the scope of fair dealing to only published works.
The reproduction of anything that is unpublished could have the effect of it, or a portion of it, being published.
A separate economic right under s. 3.
From Gutenberg to Telidon thought it prudent that fair use doctrine apply to all copyright subject matter that has generally been made available to the public, regardless of whether it has been published in the traditional sense.
Allen v. Toronto Star Newspaper Ltd.
Plaintiff was a freelance photographer.
Engaged by a nation-wide magazine to do a cover photo.
The defendant, 5 years later, used the photo in their newspaper.
The magazine had no issue with the photo being used.
The defendant had put the older photo aside a new one to show the change she had undergone.
The nature and purpose of the use by the defendant was to illustrate a current news story, therefore the defence of fair dealing was allowed.
Television New Zealand v. Newsmonitor Services
Plaintiff telecasts news and current events.
Defendant monitored these broadcasts for its clients, providing to them a transcript of any broadcast in which they were interested.
To do so, the defendant videotaped all telecasts of the plaintiff that the defendant considered might be needed.
If they were not needed, they were then deleted.
Plaintiff doesn’t want to put them out of business, just wants to get royalties.
News monitoring service is parasitic, doesn’t do any of its own work.
Defendant needed to record whole programme to effect its work, no other way of doing so.
Found that all the takings are so substantial with regard to the program they came from couldn’t be fair dealing.
“Research means searching into a matter or subject or the investigation or close study of it including written materials or those captured in electronic form.”
“Private study connotes a form of study which is personal to the person undertaking it.”
MCA Canada Ltd. v. Gillberry & Hawke Advertising Agency Ltd.
Action for damages for infringement of copyright in a musical work.
The defendant commissioned a parody of the words of the musical work “Downtown” using the same tune.
Person who made the parody looked into finding who held the copyright.
Knew that it existed.
Defendant song author knew the head of MCA Canada, could have asked him.
Found that it was more than fair dealing, needed to be licensed for parody.
Damages were assessed at what it would have cost to license properly.
CHAPTER 9: Moral Rights
Introduction
Even after the transfer of the copyright, the author shall have the right to claim authorship of the work, as well as the right to object to any distortion, mutilation, or other modification of the work which would be prejudicial to his honour or reputation.
The determination of the conditions under which these rights shall be exercised is reserved for the national legislation of the countries of the Union.
The means of redress for safeguarding these rights shall be regulated by the legislation of the country where protection is claimed.
s 14.1 and s 28. 1 deal with moral rights.
s. 34(2) deals with remedies.
Snow v. The Eaton Centre Ltd.
Application relies solely on s. 12(7) of the Copyright Act.
Allows the author the right to restrain any distortion, mutilation, or other modification of his work that would be prejudicial to his honour or reputation.
Defendant attached ribbons to the necks of the 60 geese forming a sculpture known as Flight Stop.
Done without the knowledge or permission of the plaintiff.
Plaintiff is an artist of international reputation.
Defendants say the case doesn’t fall under s. 12(7), and if it does, it’s unconstitutional.
“Prejudicial to honour or reputation” is subjective, involves a judgment on the part of the author so long as it is reasonably arrived at.
Says the addition of the ribbons make it look ridiculous.
Plaintiff only wants for the ribbons to be removed.
Held that the ribbons did distort or modify the plaintiff’s work. Were to be removed.
Prise de parole Inc. v. Guérin, éditeur Ltée.
Defendant published a collection for schools containing a number of stories, including an extract from a work, which was protected and duly registered original work within the meaning of the Copyright Act.
The author of the work had assigned the exclusive right to print and publish it and to negotiate his copyright to the plaintiff.
Already clear that the defendant had infringed the copyright of the work.
Sales were good for the market in which it was sold, mainly grade 9 and 10, until the extract was published in the defendant’s collection.
Collection was targeted to Grade 8.
About a third was reproduced word for word.
Author said that it was so clumsily adapted (missing key parts), that he would have rather his name not be associated with it at all.
Under s 14.1 the author has, subject to s. 28.2 the right to the integrity of his work - moral rights.
s. 28.2(1) does not require the plaintiff to prove prejudice to his honour or reputation, must be proved that the work was distorted, mutilated, or otherwise modified.
Allows for the use of the author’s opinion in assessing whether an infringement is prejudicial.
This case differs from Snow v. The Eaton Centre Ltd. in that the judge believes, in the assessment of the distortion, there is a requirement of an objective evaluation of the prejudice based on public or expert opinion.
In this case, the evidence certainly shows that the author felt frustrated by the publication of a shortened version of his work.
Clearly demonstrated that the work was distorted, mutilated or otherwise modified.
Author’s reputation is established.
Didn’t think that the amount of lectures he was asked to give had been affected by the altered work.
Admitted that he hadn’t been ridiculed, or had any complaints expressed to him by his colleagues or newspapers.
Found that although the work clearly has been distorted, has not been shown that it was modified to the prejudice of his honour or reputation.
Some considerations on page 291 of the Course Pack.
John Maryon International Ltd. v. New Brunswick Telephone Co. Ltd. (plaintiff)
Plaintiff had engaged the defendant to construct a new tower in downtown Moncton.
Engineering design work was done by a defendant as well.
President of both companies was the same man.
Dispute ensued as to the quality of the tower’s construction.
Plaintiff issued proceedings against the defendants claiming breach of contract and negligence in order to recover expenditures for repairs it had made.
Various counterclaims were made by the defendants, including infringement of copyright.
The plaintiff placed a girdle around the tower for the purpose of repairing it.
This was alleged to constitute an interference with the structural design of rate tower as an “architectural work of art”.
At both trial and appeal the defendant was not found to be the author of the structural design.
Sufficient to dispose of the claim, but the CoA discussed the relationship between copyright and implied terms of any contract that may limit copyright, as well as a claim to an infringement of moral rights (the right of integrity) that the defendant made.
Laforest said even if the defendant was the author of the design, don’t think he could recover.
SCC looked to the Netupsky v. Dominion Bridge Co. Ltd. case where changes to a contract had been contemplated by the parties but the contractor refused to make them.
Second contractor made the changes, in doing so the court found they could use the plans in which the original contractor held the copyright.
Defendant knew the structure was intended as a communications tower.
Had to be safe, and be perceived to be safe by the public.
Public safety had to be ensured without arousing public concern.
NB Tel considered making repairs inside the tower, but didn’t want to risk interfering with the communications facilities.
Tried to bring in s. 20 which would give a right to damages for copyright infringement.
Looks to European law which indicates the necessary distinction that must be made in the treatment of works where the function of which is utilitarian as well as artistic.
There’s a balance, utilitarian function is first here, takes precedent. Counterclaim dismissed.
Moral rights are vested, in s. 14.1(1), in an “author of a work”.
Therefore, not only limited to authors, but also to “works” which are defined in s. 2 of the Copyright Act.
Moral rights are therefore applicable only to subject matter to which s. 3 rights apply.
This in turn relates to “every original literary, dramatic, musical and artistic work” that qualifies for protection under s. 5.
“Neighbouring rights” should not be protected by moral rights.
