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Re: [dvd-discuss] Key case restores copyright balance
I'm not a lawyer nor do I have much knowledge of Canadian copyright
law outside of what is presented in the ruling, but....
On Fri, Apr 19, 2002 at 03:53:40PM -0700, Richard Hartman wrote:
> 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.
It seems more that the court found that the work was not in violation
of the economic clauses of the copyright act that allow the unauthorized
reproductions to be seized prior to judgement. It also seems that
the court chooses to not make judgement on whether the moral rights
of the artist were violated as they were only asked to rule whether
the seizure order was legitimate.
Since the respondent has not brought himself within s. 38 of the Copyright
Act, he had no authority to obtain a seizure of the appellants' copies under
art. 734 C.c.p. The respondent's real complaint is more properly characterized
as the alleged infringement of his "moral" rights and its potential impact on
the market for his works. An art. 734 seizure before judgment is not available
to an artist or author who relies on the alleged infringement of a moral right.
The evaluation of a potential breach of moral rights calls for the
exercise of a good deal of judgment. A distortion, mutilation or
modification of a work is only actionable if it is to "the prejudice
of the honour or reputation of the author". The artist or writer
should not become the judge in his own cause on such matters and it is
therefore entirely understandable that Parliament should insist on prior
judicial review before any seizure takes place based on an assertion of
violation of moral rights. Whether a fuller record adduced at trial will
demonstrate a breach of economic rights or moral rights will be for the
trial judge to determine. At this stage, we need to decide only that
the interlocutory record did not justify the seizure before judgment.
> 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?
Yes -- about 6 paragraphs before that is the beginning of the dissenting
opinion "Per L'Heureux-Dubé, Gonthier and LeBel JJ. (dissenting):"