Use of Works

When do existing rights apply? Does the nature of copyright protection have to be changed to address the use of works on the Information Highway?

Economic Rights

CAPIC agrees that the principal guiding factor must be that the copyright owner has exclusive right to "produce or reproduce the work or any substantial part thereof in any material form whatever."

A principal consideration is that each digital copy of a work isthe equivalent of an original. If 5000 unauthorized copies of awork are distributed and 4999 are recovered, the existence of a single unauthorized copy permits ongoing reproduction at future dates. The work has been "unvalued" by the loss of the ability to control production and reproduction.

If we further presume that the digital copy may find its way to a computer storage system in a non-Berne signatory country, the possibility for future unwitting infringement by users is obvious.

Particularly in the fields of photography and illustration, the value of a work may depend on the creators ability to guarantee to future users specific and exclusive rights to reproduce which are limited by territory, duration, numbers or some other factor.

There is general agreement that a primary object of the Information Highway will be the dissemination of works. A requirement to prove loss in order to recover damages is unfair and does not serve either to deter infringers or protect creators. A recovery of plates or originals is impossible. The difficulty of proving economic rights may deter creators from providing access to works of value.

Statutory Damages are the only method available to protect creators and ensure the availability of their works in not hindered by fear of infringement. Specifically statutory damages should be targeted at the first infringer as the causative agent of all potential subsequent infringement. As the value of an infringed work may exceed the statutory limits established, these damages should not restrict the ability of a better known creator or corporation to litigate for larger amounts.

2) Communication to the Public by Telecommunication

Images and/or digital works can be "downloaded" on demand from electronic "bulletin boards" or information services. The wide use of the Internet makes it feasible to acquire digitally encoded information from a growing number of resources which are simply interconnected rather than in the business of distributing information.

A growing threat of interconnection is the possibility that an image stored on Computer A by an authorized copyright user may be downloaded to Computer B by an unauthorized user.

CAPIC agrees that the phrase "to the public" must be interpreted to include on-demand transmission. Although case law has not addressed this issue, CAPIC points out that the exponential development of the Internet and electronic on-demand information requires specific attention in an amended Copyright Act. Reaction to possible future judicial narrowing is an unwise expedient.

Recommendation

Statutory damages for infringing reproduction should be introduced as one of the most efficient methods of protecting creators and valuing intellectual property. This will serve additionally as an effective deterrent to infringers.

Where the possibility exists that case law could limit the interpretation of "on-demand" communication to the public by telecommunication, the Copyright Act should be amended forgreater clarity.

What is the copyright liability with respect to carriage of works?

The Copyright Act exempts common carriers (eg. telephone companies) from liability where they function solely as a common carrier. One does not receive a telephone call from the telephone company. We receive calls from identifiable persons or organisations. The carrier is a method of communication. It is not the source.

The "Content" is acquired from the BBS. The process in not analogous to a common carrier.

Where a BBS accepts works uploaded in anonymity, copyright works could be distributed with no identifiable offender. The BBS can argue that they do not know the source nor were they aware of the copyright holder. The ultimate downloader may assume that the BBS has a right to make the work available.

Technology is readily available to permit the source of every upload to be identified. The uploader would also make declaration of their right to upload and/or distribute the work and thus become the source of the reproduction. As reproducer of the works, the uploader "SubA" would also become subject to statutory damages.

The BBS and downloader "SubB" receive a record of the source of works in their possession.

In this model, the BBS is a storage device to enable communication between "SubA" and "SubB" and is fulfilling the role of "carrier".

Any acceptable defence mechanism provided to the operator of a BBS should be conditional upon their acting as "carrier" rather than "source" in the manner and spirit described above.

CAPIC would view this as meeting the definition of "carrier."

Recommendation

Liability should be imposed on BBS owners and operators where they have not acted exclusively as a "carrier" of information between persons, one of whom claims the right of reproduction. Statutory Damages should apply to the uploader identified as thesource of copyright infringement.