Cameron Hutchison, ‘Understanding Copy Right’

At its core, copyright is about protecting the author’s right to copy. Traditionally, this meant that an author had control over, and profited from the sale of, copies of the expressive content of her work (consumptive copies). The digital revolution has created a demand for a new kind of copying, specifically as a raw material input into technological processes. These copies facilitate activities such as internet communication or the storage and retrieval of data but are not per se consumed for the expressive content of the work involved (non-consumptive copies). Copyright law has never encountered this kind of copying before. On the one hand, lower courts have reflexively assumed that such non-consumptive copying triggers the reproduction right. On the other hand, exceptions to this rule have been carved out for specific types of non-consumptive copying. The response of the Supreme Court on both of these fronts has lacked rigor. First, it has not applied a purposive analysis to determine whether non-consumptive copying was intended to trigger the right to copy (or reproduction right). Second, exceptions carved out by the court, culminating in the decision in CBC v SODRAC (SODRAC), now appear piecemeal and irreconcilable with other forms of non-consumptive copying that do trigger the reproduction right.

This paper is a reaction to the decision in CBC v SODRAC, in which the promise of the principle of technological neutrality as a means of rationalizing copyright holder rights in the digital realm failed to materialize. That decision, and how it relates to other digital copy case law from the Supreme Court over the past dozen years, should prompt us to re-think the fundamentals of the right to copy. In part I, after summarizing the majority and dissent judgments in SODRAC, I identify four elements of confusion in the Supreme Court’s treatment of digital copying: (1) vacillation between ordinary meaning and purposive approaches to interpreting the Copyright Act (Act) (2) uncertainty about the principle of technological neutrality and when it should be applied (3) a failure to identify the relevant attributes that justify differential treatment of the various kinds of digital copying and (4) the value now placed on copying as an input to a technological process and not just for the work’s expressive use. In part II, I propose a principled (though not perfect) framework for both distinguishing between different forms of digital copying – consumptive or non-consumptive use – and connecting this to a purposive interpretation of the right to copy. The thesis is that the right to copy only applies when there is end user access to the expression of a work.

Hutchison, Cameron J, Understanding Copy Right (February 19, 2016).

First posted 2016-02-22 06:40:34

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