Generally, one thinks of copyrights as a means to protect one’s economic and moral rights as they relate to one’s work, and not, as in this case, to protect one’s privacy.    Copyright law is delving into an area typically inhabited by privacy provisions embedded in criminal and civil law.  Some troubling issues arise when copyright law is used to provide relief in cases that are not in its traditional realm because other areas of law may fail to remedy an obvious moral wrong.

The application of the Canadian Copyright Act to the Fortuny case becomes very muddled.  The question of infringement seems straightforward; the photographer is generally the owner of the photograph [2] and Fortuny’s use was an infringement [3].  The legal analysis gets messy when considering fair dealing, which is what Fortuny himself is claiming [4].  Fair dealing requires the use to fall into one of the enumerated categories in s.29 of the CCA.  CCH mandated for a “large and liberal interpretation” of the enumerated categories [5] but it is unclear whether Fortuny’s use can be included.  The use must also be fair [6].  Neither the purpose of the use by Fortuny nor the intended use by the victim was for financial gain; therefore, this case does not easily follow the CCH analysis for fairness.  The courts may focus on the true purpose of humiliation and find the use unfair or they may find that this unusual use does not correspond to any traditional unfair copyright uses.

The next issue relates to the purpose of copyright law to protect economic and moral rights.  Although the language of the CCA may apply to the case at hand, the Act’s breadth is being stretched beyond its intended purpose.  The economic provisions [7] are meant to protect an owner’s financial interest in their intellectual property which is not being compromised here; the work was not intended, ever used, nor ever capable of being used for financial gain.  As for moral rights [8], we again see that the language seems to apply though the underlying purpose may not.  The moral right of attribution is in relation to the work’s merit which is not at issue here.  One is also protected from being associated with a cause through one’s work.  In this case there is no such cause present.

Applying the CCA to sue Fortuny is not morally objectionable.  The law as a whole is being used to remedy a wrong.  However, blurring the division between areas of law may lead to unpredictable and inconsistent results as laws that were written with a specific purpose are transposed onto an alien scenario.

Sources

[1]
[2] Copyright Act, R.S.C. 1985, s.13, [CCA].
[3] Ibid, s.27.
[4] (This website has recently shut down).
[5] CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] S.C.J. No. 12 [51].
[6] Ibid, [50].
[7] CCA, supra s.3.
[8] CCA, supra s.14.

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Tamilflu, used to treat the avian flu, was developed and is privately held by Roche.  The avian flu is a lethal virus which spreads from poultry to humans directly in contact with them [i].  The major concern is that the virus could mutate to transfer from person to person [ii].  In such a case, studies have shown that even a mild outbreak could result in 1.4 deaths and cost $330 billion while a worst-case scenario could lead to deaths upward of 142 million [iii].   

The fear is that Roche lacks the capacity to produce enough Tamilflu treatment to combat a large outbreak of the virus [iv].  In “Tamilflu, the Takings clause, and Compulsory Licenses…” [v], Amanda Mitchell explores the options available to the US Government in resolving the inadequate supply of Tamilflu.  The first option considered is compulsory licenses which allows the US Government to use patents without the owner’s permission, after which, the owner can sue for infringement.  Furthermore, the government may take an even more extreme approach of “Eminent Domain” which utilizes the Government’s constitutional power to take title of property on the basis of public interest and provide reasonable compensation.  Although, this right is typically reserved for taking title of land, it may also be used for taking possession of patents.  The Government would have to compensate for the whole cost of a patent, which by considering the potentially large demand for Tamilflu, could be very high.  Nonetheless, Roche stands to lose by either approach as they lose their dominant power in the Tamilflu market.   

Although it is difficult to argue against the morality of overpowering pharmaceutical companies to serve the public health, Governments must show restraint in taking a strict adversarial approach.  The enormous profit which a company stands to gain from finding a cure to dangerous viruses is the driving force behind their innovation.  Ideally, the companies would require only humanitarian motivates to develop their drug, however, development is very costly and there is no guarantee the investment will be successful.   Moreover, corporations are currently very effective agents in developing new drugs.  Governments must be careful to preserve incentives for investing in costly research to solve the world’s health problems.   

It is not argued that pharmaceuticals are perfect or that they should be left free to do as they please.  There is great need for reform to develop and execute laws that compel these companies to compromise their profits when possible to serve the humanitarian agenda.  However, one must also not punish them for being in an industry which provides life saving medication.  There is a tendency to be more critical of pharmaceutical companies because they profit from saving lives, as opposed to providing luxury goods.  Alternatively, society is more accepting of companies exploiting our desires instead of our needs.  Instead of condemning the pharmaceuticals for providing life saving products, we must commend them.   

It must be restated that regulation is necessary as pharmaceuticals hold a great deal of power in relation to public interest.  However, governments must exercise their powers with discretion.  Infringement of pharmaceuticals’ rights to property must only be exercised as required and compensation must be fair.  In the case of Tamilflu and Roche, there are other ways to compel corporations to increase the supply of their drugs.  By taking an adversarial approach, governments may misuse their powers in the name of public interest; which could serve to hurt that exact cause.   

Protection of pharmaceuticals has a utilitarian grounding by motivating medical innovation, and is also grounded in justice, as the products developed save lives.  Although, there is a great need for regulation and reform, governments must use their powers with discretion to assure companies like Roche continue to develop the drugs that can protect us from new viruses such as the avian flu.   

[i] Mitchell Amanda, “Tamilflu, the Takings clause, and Compulsory Licenses: An Exploration of the Government’s Options for Accessing Medical Patents” California Law Review (2007) Volume 95 at 538.[ii] Ibid, at 538.[iii] Ibid, at 538.[iv] Ibid, at 539.

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