1. Introduction: The Uncertain Contours of Copyright User Rights
2. Copyright Users and Remedies
3. Copyright Users and Access to Justice
3.1. Access to Justice Sphere of Inquiries
3.2. Access to Justice for Authors and Copyright Holders
3.3. Access to Justice and Copyright Users
The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator […].58
[t]he negotiations during each iteration of the Berne Convention framed the meaning of “rights” as if the only rights at issue were the copyright owner’s rights of exclusion, forgetting that the public has rights that also matter a great deal, such as rights to read the books, to watch the movies, and to access the underlying ideas expressed in any copyrighted work.
Cultural artefacts are not simply useful commodities. While they often have an entertainment value that could be quantified, they also possess a communicative value and a symbolic significance. They engage our minds in a more direct and intimate way than do mundane commodities and, therefore, expose consumers to a higher risk of deeper and more intrusive restrictions of freedom. This particular vulnerability of information consumers is often overlooked.
4. Conclusion: Moving beyond Copyright User Remedies
Conflicts of Interest
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2004 SCC 13 [CCH].
Copyright Act, RSC 1985, c C-42 [CCA].
CCH, supra note 1 at para 48; Society of Composers Authors and Music Publishers of Canada v Bell Canada, 2012 SCC 36 at para 11 [Bell Canada]; Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 at para 22 [Alberta]; Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68 at paras 56ff [CRTC].
Théberge v Gallerie d’art du petit Champlain Inc., 2002 SCC 34 at para 30 [Théberge]; CCH, supra note 1 at paras 10, 14–36 (in particular 23–24), 48; Bell Canada, supra note 3 at para 9. Public discourse on the need to balance the interests of copyright holders, of users, and the public was particularly prevalent in the last major Canadian copyright law reform that led to the entry into force in 2012 of the Copyright Modernization Act, SC 2012, c 20, with a Government website devoted to copyright reform titled “www.balancedcopyright.gc.ca” (website no longer accessible).
See e.g., Campbell v Acuff–Rose Music, Inc., 510 US 569 at 590 (1994), fair use being referred to as an affirmative defense; Trib. gr. inst. 5e Paris, 10 January 2006, Christophe R., UFC Que Choisir/Warner Music France, Fnac (2006) JurisData: 2006-292685; on appeal CA Paris, 20 June 2007, Fnac Paris/UFC Que Choisir et autres (2007) Juris Data 2007-337236; confirmed by the Cour de cassation: Cass civ 1re, 27 November 2008, UFC Que Choisir/Fnac, Warner music France (2008) JurisData 2008-046005; CA, Paris, 4 April 2007, Studio Canal et al. v S Perquin and Union fédérale des consommateurs Que choisir, Gaz Pal 18/07/2007 No 199, 23; confirmed by the Cour de Cassation: Cass civ 1re, 19 June 2008, (2008) Bull civ I No 177. Given the introduction in 2009 of article L331-31 in France’s Code de Propriété Intellectuelle [France CPI] of a procedure facilitating the resolution of complaints by persons deprived of the exercise of some exceptions to copyright infringement, the statement that exceptions to copyright infringement cannot form the basis of a claim no longer stands. Courts in the US have occasionally referred to fair use or other exception as a ‘user right”: see e.g., Lenz v. Universal Music Corp, 815 F.3d 1145 (9th Cir. 2016) holding that fair use is a right and therefore “authorized by law” in the context of a notice and take-down procedure pursuant to US Digital Millenium Copyright Act; other US courts have referred to exceptions to copyright infringement as a “user right” with no further elaboration on the subject: see e.g., Whelan Associates Inc v Jaslow Dental Laboratory Inc., 797 F (2d) 1222 (3rd Cir 1984); Bateman v Mnemonics Inc., 79 F (3d) 1532 at no 22 (11th Cir 1996); Suntrust Bank v Houghton Mifflin Co., 268 F (3d) 1257 at no. 3 (11th Cir 2001); US v Elcom Ltd., 203 F Supp (2d) 1111 at 1119 (ND Cal 2002); 321 Studios v Metro Goldwyn Mayer Studios Inc., 307 F Supp (2d) 1085 (ND Cal 2004). For a discussion on recent judgments by the Isareli Supreme Court and its treatment of fair use see: Elkin-Koren (2016, pp. 37–38).
D’Agostino, supra note 6, p. 357. See however Craig (2017, pp. 62–64, 69, 73), (warning against rights rhetoric as narrowing the focus on copyright holders and user entitlements, and being potentially “inhospitable to the very consideration that ought to inform copyright law” by missing out on the broader dimension of social creativity, culture and a vibrant public domain, while at the same time recognizing the intrinsic power of the language of rights as possibly enabling social change for the benefit of users of copyright works).
See e.g., France CPI, supra note 5, art L 122-6-1 in fine, listing exceptions to copyright infringement that are mandatory; Belgium Wetboek van economisch recht/Code de droit économique, art XI.193, listing exceptions to copyright infringement relating to computer programs that are mandatory; Copyright, Designs and Patents Act 1988, c 48, (UK), see e.g., ss 29 (4b) (fair dealing for purpose of research and private study) 29A (5) Copies for text and data analysis for non-commercial research) 30(1ZA)(4) (quotations) 30A(2) (caricature, parody or pastiche) [UKCDPA].
See Australia Commonwealth (2013) at para 20.26, acknowledging that there is no certainty on that matter; see also Australian Government (2018, pp. 15–18), (public consultation about copyright legislative reform to address the issue of contracting out of exceptions to copyright infringement). US courts have explicitly held exceptions to copyright infringement may be waived by contract. See e.g., Bowers v Baystate Techs, Inc., 320 F (3d) 1317 at 1325 (Fed Cir 2003); Davidson & Associates Inc., et al. v Internet Gateway, 334 F Supp (2d) 1164 (ED Mo 2004).
Niva Elkin-Koren (2016, p. 36); Elkin-Koren (2017, p. 132), (exploring how a user-rights approach posits users as active participants promoting creation, dissemination and use of cultural works rather than “parasites” benefiting unjustly from limits on author’s rewards, and arguing that uses that promote the objectives of copyright law should be considered rights and not mere legal defenses).
An inquiry into remedies of copyright users also involves looking at procedures of administrative bodies that seek to facilitate access to copyright works between the right holder and the user when the user faces obstacles to such uses, as is the case in France and in the UK: see Part 2 below.
See CCH Canadian Ltd. v Law Society of Upper Canada (1999),  2 FC 451 (TD): the defendant Law Society of upper Canada unsuccessful counterclaim for a declaration of non-infringement of copyright; cross appeal dismissed on appeal: CCH Canadian Ltd. v Law Society of Upper Canada, 2002 FCA 187; cross-appeal dismissed by the Supreme Court of Canada: CCH, supra note 1.
Canadian Copyright Licensing Agency v. York University, 2017 FC 669, para 2 (notice of appeal filed by York University, September 22, 2017).
A good example is the doctrine of classification of terms in the common law of contracts whereby different categories of breaches of contract will impact the nature of the remedies that will be available. See Hong Kong Fir Shipping Co. Ltd. v Kawasaki Kisen Kaisha Ltd.,  2 QB 29,  1 All ER 474.
Conceptions of “access to justice” are discussed below in Part 3.1.”Access to justice sphere of inquiries”.
France CPI, supra note 5, art L 331-7, L 331-31; Belgium Wetboek van economisch recht/Code de droit économique, art XI 291 § 2. See also UKCDPA, supra note 9, ss 296ZE and 296ZEA (the regulations that added s. 296ZEA were quashed prospectively: R (on the application of British Academy of Songwriters, Composers and Authors Musicians’ Union & Ors) v Secretary of State for Business, Innovation and Skills & Anor  EWHC 2041 (Admin)).
See e.g., France CPI, supra note 5, art L 331-5, L 331-31-32.
EC, Parliament and Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society,  OJ, L 167/10.
Ibid, art 6(4).
For instance, some of the recourses available to copyright users involve a mediation phase between copyright users and copyright holders which may be successful but which is not documented: see e.g., UKCDPA, supra note 9, ss. 296ZE and 296ZEA (the regulations that added s. 296ZEA were quashed prosectively: R (on the application of British Academy of Songwriters, Composers and Authors Musicians’ Union & Ors) v Secretary of State for Business, Innovation and Skills & Anor  EWHC 2041 (Admin).
27 June 2013, (entry into force 30 September 2016) online: <http://www.wipo.int/treaties/en/text.jsp?file_id=301016> accessed 22 June 2018. As of that date there were 39 parties to the treaty.
Ibid, art 7.
See e.g., CCA, supra note 2, s 32.01 (1) (implementing Canada’s obligations under the Treaty (supra note 27) and creating a privilege in favour of defined non-profit organizations to perform certain acts without the permission of copyright holders, while not imposing positive obligations on copyright holders to grant access to certain works for persons with a “print disability” (as defined)); Directive (EU) 2017/1564 of 13 September 2017 on certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled and amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society,  OJ, L 242/6 (implementing EU obligations under the Treaty by establishing a mandatory and harmonized exception to copyright infringement covered by the Treaty. The Directive applies the regime of positive obligations that may be imposed on right holders using TPMs to grant access to their copyright works as set out in Directive 2001/29/EC, supra note 24, art 6(4)).
Harris (1996, pp. 5, 65), referring to “self-seekingness” as one of the key attributes of ownership of property, i.e., this intimate relationship between the owner and the resource as to how they choose to dispose of the resource, with prima facie no duty to account to any one for the merit or rationality of that preference.
Courts often refer to copyright as property. In Canada, see e.g., Desputeaux v. Éditions Chouette,  2003 S.C.C. 17, para. 57 ; Euro-Excellence Inc. v. Kraft Canada Inc.,  S.C.C. 37, pp. 27–39; BMG Canada v. John Doe,  F.C.A. 193, para. 41; Cie Générale des établissements Michelin v. C.A.W. Canada,  71 C.P.R. 3d, 348. See also Chapdelaine (2014); Howe and Griffith (2013), which contains several chapters focusing on the property attributes of copyright.
See e.g., Australia Commonwealth (2013, pp. 435–58), (on the discussion on the appropriateness of making exceptions to copyright infringement mandatory, pointing to other legal doctrines, such as the doctrine of public policy in contract law, consumer protection law, the doctrine of copyright misuse, that could ensure that the rights of users are adequately protected).
See below in this section.
There are important obstacles to the enforcement to consumer claims that include prohibitive legal fees, low monetary value of individual claims, limited access to class actions or other collective defense of consumer interests. For an overview of the different theories and strategies employed for the regulation of consumer protection and enforcement issues, see, Cafaggi and Micklitz (2009), in particular Samuel Issacharoff & Ian J. Samuel, “The Institutional Dimension of Consumer protection” pp. 47–62.
See e.g., Rabinovich-Einy and Katsh (2017a) (on the potential and perils of online dispute resolution as potentially increasing efficiency and fairness of dispute resolutions, while pointing to the dangers of online dispute resolution mechanisms possible biases and lack of fairness due to their reliance on algorithms); Katsh and Rabinovich-Einy (2017) (examining how new technologies and social media generate new disputes while at the same time offering opportunities of resolving and preventing disputes).
See below Part 3.3 ii “Attention to specific classes of users”.
See above Part 2 “Copyright users and remedies”, and below Part 3.3 (i) “Justice for users”.
Various multilateral treaties have progressively increased the level of protection of copyright worldwide: Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, 828 UNTS 221, and subsequent revisions; Agreement on Trade-Related Aspects of Intellectual Property Rights, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 15 April 1994, 1869 UNTS 29, 33 ILM 1197 [TRIPS]; WIPO Copyright Treaty, 20 December 1996, WO033EN; WIPO Performances and Phonograms Treaty, 20 December 1996, WO034EN. Canada has followed suit, with copyright protection progressively increasing in duration, scope, and subject matter over the last century.
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), art 27.
i.e., to set the record straight, here about the state of copyright law and the scope of user rights.
The Statute of Anne, 8 Ann c. 19 (1710) (An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned), the first codification of copyright in a common law jurisdiction regulated by the State, embodies instrumental objectives of copyright geared toward the public interest. In a Canadian context, the leading judgment by the Supreme Court stating the objectives of copyright is Théberge, supra note 4 at para 30.
US Constitution, art 1 s 8 (conferring to Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”).
See Heller, supra note 48 (generally on the overprotection of intellectual property leading to the ‘tragedy of the anti-commons’).
See below Part 3.3 (iv) “What reforms for copyright users?”.
Referring to the “situated user”, i.e., one “who appropriates cultural goods found within her immediate environment for four primary purposes: consumption, communication, self-development, and creative play. The cumulative result of this behaviour by situated users, and of both planned and fortuitous interactions among them, produces what the copyright system names, and values, as “progress.”, as being as important to the engine of progress as the incentive to authors to create.”
For the history of the development of the access to knowledge movement within international copyright law (through key ideas and concepts, specific interest groups, and international institutions) see Bannerman (2016); Kapczynski (2008) (on the historical development of A2K as a counter movement and response to the progressive evolution of intellectual property enclosure). See also Thompson (2007); Al-Sharieh (2018, pp. 22–23), (arguing that current international human rights law’s attention to authors’ rights over their intellectual creations, along the rights of users to access and share authors’ works, is an attempt to maintain a “just order in the ecosystem of knowledge creation, use, and distribution”).
Théberge, supra note 4 at para 30.
For a critique of technological protection measures blocking out lawful uses or on possible regimes of implementation that would leave lawful uses of works unencumbered see Geist (2010), in particular ch 7: Carys Craig, ‘Locking Out Lawful Users: Fair Dealing and Anti- Circumvention in Bill C- 32’ and ch 8: Michael Geist, ‘The Case for Flexibility in Implementing the WIPO Internet Treaties: An Examination of the Anti- Circumvention Requirements.’; see Electronic Frontier Foundation (2014).
On the historical development of A2K as a counter movement and response to the progressive evolution of intellectual property enclosure.
Founding the rights of the public on existing liberty rights to reproduce or use authorial works as necessary.
Noting the lack of scrutiny of claims and assumptions that more copyright protection encourages development.
Arguing that if copyright law is to play a role in economic growth, then it should look different in developing countries, and that international copyright law, as a social institution, should enable this difference.
Supra note 27.
See e.g., Reynolds (2016); Izyumenko (2016); Tawfik (2015); Human Rights Council, Report of the Special Rapporteur in the field of cultural rights, Farida Shaheed—Copyright policy and the right to science and culture, UNGAOR, 28th Sess, Agenda Item 3, UN Doc A/HRC/28/57 (2014); Netanel (2013); Hugenholtz (2001); Cohen (1997, p. 1014ff).
Canadian Charter of Rights and Freedoms. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c11.
Copyright protects the expression of ideas, not the ideas themselves: TRIPS, supra note 43, article 9(2).
Feist Publications, Inc. c. Rural Tel. Service Co., 499 U.S. 340 (1991), 345–46; CCH, supra note 1, para 25 (stating the test for originality in Canadian Copyright law: the work must not be copied from another work and must be the product of author’s exercise of skill and judgement).
CCA, supra note 2, s 3(1).
See Cinar Corporation v. Robinson, 2013 SCC 73 paras 31–32 (adopting a holistic and qualitative approach to whether a substantial part of a work was taken rather than a piecemeal one to the copied features).
CCA, supra note 2, s 3(1).
See scholarship looking at the interaction between copyright and freedom of expression, supra note 66.
CCA, supra note 2, ss 29-29.2; CCH, supra note 1 at paras 48–73.
One example that comes to mind is “appropriation art” which may not constitute a fair dealing in Canada, while it has been considered fair use in the US: see Cariou v Prince, 714 F (3d) 694 (2d Cir 2013).
 2 R.C. 306 (F.C.), the Federal Court holding that the restrictions imposed by the CCA on the use of copyright works did not contravene to the Canadian Charter.
See Reynolds (2017) (including pp. 33–34, for a review of the scholarship on the compliance of the CCA to the Canadian Charter guarding against preconceived assumptions that the application of the CCA is compliant with the Charter and that any limitation of protected expressions is compliant with restrictions permitted under Canadian Charter s. 1).
(Tawfik 2015, p. 278); (Reynolds 2016, pp. 29–35); (Al-Sharieh 2018, p. 31) (arguing that assumptions being made about Parliaments having already weighed in freedom of expression in the allocation of exclusive rights of copyright and exceptions thereto “excuses courts from identifying instances, not envisaged by statutory copyright exceptions, where copyright may encroach upon freedom of expression”).
Canadian Charter, supra note 67, s. 1 provides that the rights and freedoms provided in the Canadian Charter are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”; R. v. Oakes  1 SCR 103 paras 69–71 (setting the test that Canadian courts follow to determine whether a limitation to rights and freedoms under the Canadian Charter is justified. First, the objective must be “of sufficient importance to warrant overriding a constitutionally protected right or freedom”, and second it must be shown “that the means chosen are reasonable and demonstrably justified” (proportionality assessment)); see Reynolds (2016, pp. 43–68).
On how we need to factor in that copyright law in Canada has shifted from an author-centric to a balancing of interests conception of copyright.
Théberge, supra note 4 at para 30.
Supra note 44 , article 27.
P ositing a copyright work as a communicative act which inherently sets limits to the author’s rights such as with respect to transformative uses involving a user-defendant’s own authorship, on the basis that the author-plaintiff’s entitlement as a speaker should not bar the valid exercise of another’s speech.
Supra note 67.
One example is how various user groups, large and small joined forces in early 2012 against the introduction of Stop Online Piracy Act US, Bill HR 3261, Stop Online Piracy Act, 112th Cong, 2011, and against the proposed Protect Intellectual Property Act US Bill S 968, Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011, 112th Cong, 2011. Both bills were subsequently abandoned.
See above Part 2 “Copyright Users and Remedies”.
See below iv “What reforms for copyright users?”.
France CPI, supra note 5 art L 122-6-1 in fine, listing exceptions to copyright infringement that are mandatory; Belgium Wetboek van economisch recht/Code de droit économique, art XI.193, listing exceptions to copyright infringement relating to computer programs that are mandatory. See also EC, Council and Parliament Directive 2009/24/EC of 23 April 2009 on the legal protection of computer programs,  OJ L 111/16 [Directive 2009/24/EC] where some exceptions to copyright infringement related to computer programs cannot be limited by contract: art 5(2) and (3); UKCDPA, supra note 9, see e.g., ss 29 (4b) (fair dealing for purpose of research and private study) 29A (5) Copies for text and data analysis for non-commercial research) 30(1ZA)(4) (quotations) 30A(2) (caricature, parody or pastiche).
e.g., matching and filtering systems applied by internet intermediaries, such as YouTube’s Content ID: “YouTube Help, How Content ID Works” (YouTube 2018).
See (Sag 2017, p. 40). On the difference between how automated copyright enforcement tools are used by right holders and by intermediaries: Ibid at 45, noting that right holders would typically have to follow the notice and take-down regime set out in the US Digital Millenium Copyright Act, Pub L No 105–304, 112 Stat 2860 (1998) [DMCA] and that intermediary platform operators of such copyright enforcement tools create an alternative regime (“DMCA plus” regime).
The matching and filtering system also allows copyright holders to monetize allegedly infringing videos by placing ads next to them. See (YouTube 2018).
Copyright Act, 17 USC, § 512; CCA, supra note 2, ss 41.25–41.27.
See also Perel and Elkin-Koren (2016, pp. 484–96), (raising concerns on the accuracy of automated copyright enforcement systems and making a plea for more algorithmic accountability); Lester and Pachamanova (2017) (evaluating how to measure and regulate the effectiveness of algorithms (such as “Content ID”) to avoid risks of false positives of copyright infringement while protecting the interests of copyright holders).
The mixed-fair-use infrastructure that they propose and which is discussed further below in this section would require changes to the US Copyright Act, 17 USC; Ibid, at 529–532, advocating mandatory minimum disclosure requirements. See also Perel and Elkin-Koren (2017) (on the inadequacy of transparency to ensure public oversight on algorithms, advocating for self-help capabilities as a more efficient means of ensuring accountability of algorithms, using online copyright enforcement algorithms as a case study).
Citing the Audio Home Recording Act, 17 USC § 1002 (2001) regarding digital audio tape recordings and allowing the production of only one generation of perfect copies, and 17 USC § 1201(k)(2) (2001), imposing certain requirement on copy-control technologies for videocassette recorders to allow time-shifting of broadcasts and cable television programming.
CCA, supra note 2, ss 29–29.2 if it falls under the purpose of research, private study, education, parody, satire, criticism, review, or news reporting, such purposes being interpreted broadly, and if the dealing is fair: CCH, supra note 1 at paras 47–73; US Copyright Act, supra note 102, §107.
CCA, supra note 2, s 29.21.
Presenting a taxonomy and hierarchy of copyright user rights based on whether the user owns a copy of the work, has a service contract with the copyright distributor, or is a public-space user (i.e., with no contractual relationship pertaining to the copyright work that the user has access to).
For example in France and Belgium, the relevant copyright statutes provide that TPMs cannot restrain the ‘normal use’ (or similar concept) of a copyright work: France CPI, supra note 5, art L 331-5 (in French, libre usage); Belgium Wetboek van economisch recht/Code de droit économique, art X.291 § 4 (in French, destination normale and in Dutch, beoogde dool te gebruiken).
See above “Making copyright holders accountable for user-friendly access architectures”.
In economic theory terms, this could also be referred to eliminating situations of “deadweight loss”.
CCA, supra note 2, ss 14.1, 17.1.
See above Part 3.1 “Access to justice sphere of inquiry”.
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