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Emily Prieur is an IPilogue Writer and a 3L JD Candidate at Queen’s University Faculty of Law

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Background

In July 2021, the Government of Canada launched a consultation on Artificial Intelligence (“AI”) and the Internet of Things (“IoT”). The goal was to balance the realities of developing technologies with the interests and needs of artists, innovators, and consumers. In the , the government stated its aim of “making sure that our digital and data-driven economy is built on a strong foundation of trust and that AI is developed and used responsibly to the benefit of all citizens”.��

In response to the call to submissions, thirteen scholars in Intellectual Property, including Osgoode Hall Professor Carys Craig and Queen’s Law Professor Bita Amani, for how the government could address these concerns. The submissions are divided into the categories of AI policy reform and IoT policy reform. In Part 1, I will summarize some of the key points presented by the group concerning AI, and in Part 2, I will focus on their suggestions concerning the IoT.

Balancing the Public Interest

The scholars acknowledged the government’s commitment to “keep pace” with technological developments in AI while through Federal statute (the Copyright Act). In so doing, they relied on , where the court described copyright laws 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”. The group also stressed the importance of technological neutrality and referenced . In that case, the court grappled with the importance of developing copyright legislation independently, without prioritizing one form of technology over another. The court placed further emphasis on the importance of drafting copyright legislation impartially, without making specific objectives concerning AI, as the technology will likely continue to develop and change.

Text and Data Mining��

The group highlighted their concerns regarding the regulation of text and data mining (TDM) activity under the Copyright Act. TDM is important to the public interest, as it supports AI research and development. Moreover, TDM plays a role in scholarly and commercial research, education, and journalism.

The authors pointed to current legal barriers for those who participate in TDM. Included in these barriers was the uncertain applicability of section 3(1) of the Copyright Act. The confusion arises from . The Supreme Court concluded that the creation of electronic copies through “cashing” did not implicate the interests of copyright owners. Yet, the scholars suggested that the legislature leaves room for confusion, as it is not clear whether the interpretation of TDM would be considered prima facie infringement by the courts.

The group proposed that the Government of Canada create a fair dealing doctrine to accommodate activities, such as research to accommodate TDM activities. Further, they suggested that the Government enact specific statutory provisions that allow for legal TDM activities that require the use of copyrighted works.

Authorship and Ownership of Works Generated by AI

One burgeoning issue within intellectual property law is legal protection for AI-generated works and inventions (see IPilogue posts regarding inventorship rights for AI , , here, and ). The scholars rejected the notion of copyright protection for AI-generated works. As such, they suggested the government make amendments to the Copyright Act delineating the requirement of human authorship to gain copyright protection.

Final Recommendations

In outlining their concerns about the future of Copyright legislation and its potential to protect the interests of Canadians, the group provided their final recommendations to the government, which included amending the Copyright Act to include a broad statutory provision that allows the use of TDM without the concern of copyright infringement. The provision should apply to all technology users, including those using TDM for commercial and non-commercial purposes. The scholars also suggested amending section 29 of the Copyright Act to include a purposes list and an enumerated purpose for TDM or data/informational analysis.

Another final recommendation asked the government to clarify the definitions in section 2 of the Copyright Act to specify that an author is a human being or natural purpose. Further, it was suggested that the Government of Canada amend section 5 of the Copyright Act to specify that copyright shall not be granted to a work unless its author is human.

Public consultations are touted as one of the . Canadians can remain sanguine that the Government of Canada will heed the suggestions provided by the 13 IP scholars to protect and promote the interests of Canadians while also acknowledging the benefits that come with technological advancement. Contribution to the consultation through scholarly insight and expertise is also commendable.

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The mood of the event was decidedly celebratory, with friends, family, students, and colleagues alike partaking in food, beverages, and conversation in honour of Prof. Chapdelaine’s accomplishment. Bob Tarantino kicked the event off by contextualizing Prof. Chapdelaine’s work within the copyright user rights discussion, which has been of growing importance in the IP community since the Supreme Court of Canada’s pronouncement in – adopting the language of Prof. – that exceptions to copyright infringement are best understood as users’ rights. Mr. Tarantino noted that Prof. Chapdelaine’s book provides an answer to the question, what are user rights with respect to copyright, and thus Prof. Chapdelaine’s new book is a valuable resource for user rights critics, advocates, and fence-sitters alike.

Prof. Chapdelaine commenced her talk by thanking her friends, family, and colleagues for their support throughout her career. Prof. Chapdelaine also noted the influence her diverse background has had on her work; she having spent years in private practice in Montreal as well as in-house counsel for Bell Media and BCE Inc, and holding an LLB and BCL from McGill Universty, an LLM from KU Leuven Faculty of Law in Belgium, and a PhD from Osgoode Hall Law School.

In her book, Prof. Chapdelaine sets out to define what copyright user rights actually entail – particularly in a society where the modes of cultural consumption are increasingly dematerialized and digitized. In other words, Prof. Chapdelaine’s work examines how Western legal traditions can (and should) conceptualize and uphold copyright user rights as society’s modes of consumption move away from ownership of tangibles (e.g. books, CDs, etc.) and towards access to intangibles (e.g. streaming, e-books, etc.)?

In the Canadian legal context, the logical extension of the preceding question is: how can and should the legislature and judiciary give effect to the Supreme Court of Canada’s pronouncement in , whilst still upholding the balance between the public interest and the rights of authors expounded by the Supreme Court in ? Prof. Chapdelaine also sets out to answer the corollary question: if exceptions to copyright infringement are user rights, what obligations are imposed on copyright owners by the existence of such rights?

In answering all of the above questions, Prof. Chapdelaine adopts a theoretical framework grounded in copyright law but informed by property, contract, and consumer law, and applies it to practical situations, resulting in a comprehensive perspective on copyright user rights. In so doing, Prof. Chapdelaine problematizes the dichotomies of tangible/intangible works, and copyright owner/user in attempts to show how misunderstandings of such dichotomies influence the various arguments for and against copyright user rights.

If you find the above questions and conceptions intriguing than I suggest you get yourself a copy of Prof. Chapdelaine’s new book – I know I sure will!

Stephen Cooley is an IPilogue Editor and a JD Candidate at Osgoode Hall Law School.

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The presence of a physical object (a book , DVD, a CD) plays a determinant role in how information products (e.g., commercial copies of computer programs, books, musical recordings, video games, and virtual worlds) are regulated, in contrast with copies of similar information products disembodied from a physical object. The presence of a physical object influences how law makers distinguish goods from services, to define a contract of sale or license, to apply the first sale doctrine in copyright law, and to determine which acts reserved to copyright holders are involved in a commercial transaction. In this article, I argue that the emphasis on a physical object is to a large extent arbitrary, leads to double standards, legal and normative incoherence, and ultimately that it is detrimental to recipients of information products and copyright user rights.

While law makers’ struggles with dematerialization have been discussed in various areas of law, this article looks at those inadequacies as they relate specifically to information products. I describe how the nebulous zone that immateriality creates may be utilized to the advantage of suppliers of information products. As a result, the undue emphasis on a physical object may contribute to accentuate even more the imbalance of power often present between suppliers and recipients of information products. Resorting to property theory, in particular the concept of ownership, and to the interaction between property and contracts, I identify various criteria that should guide law makers in the regulation of information products, independently of the presence of a physical object.

Pascale Chapdelaine is Associate Professor at the University of Windsor, Faculty of Law, and is a member of IP Osgoode. Pascale Chapdelaine is presently writing a book on copyright user rights (Oxford University Press, 2017). This article deals with various aspects that will be further discussed in the book including how the dichotomy between tangibility and intangibility shapes concepts in copyright, property, and contract law.

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Whether copyright is property continues to ignite passionate debate, more than 300 years after the entry into force of the Statute of Anne.�� At the heart of the controversy lie various conceptions of property, as well as the causal effect between characterizing copyright as property and its rapid expansion. For some, the expansion of copyright is attributable to the propertization of copyright.�� For others, the root causes for the expansion of copyright must be sought elsewhere, or the so-called expansionist effects of qualifying copyright as property are attributable to a misconception of property.

The primary goal of this article is to look at the property attributes of copyright to inform a more nuanced understanding of the nature of copyright that emphasizes its distinct character. I resort primarily to James W. Harris’ theory in Property and Justice,[1] and in particular, on the insights that his characterization of property as the twin manifestation of trespassory rules and of an ownership spectrum, bring to the understanding of copyright.�� While copyright holders’ right to exclude has been a focal point in copyright scholarship, looking at copyright through trespassory rules and the ownership spectrum allows me to discern two distinct yet interrelated property interests that bring a more refined understanding of the property attributes of copyright.

The first interest relates to copyright as a whole when considered as the thing that is the object of commercial exploitation, which satisfies all requirements of a proprietary ownership interest.�� The second interest focuses on the nature of copyright holders’ relationship to the physical embodiment of their works (e.g., the commercial copies owned by consumers or other users): it emerges as a limited, remote, non-ownership proprietary interest.�� Viewing copyright through the combination of the bundle of rights as an object of commodification and the more limited rights that copyright holders have with respect to disseminated copies of their works puts greater emphasis on the property attributes of copyright while underscoring their limited scope. For instance, viewing copyright through two distinct proprietary interests confirms that copyright holders cannot own their works. This illustrates how a property lens may in fact narrow the scope of copyright, and challenge the perception that associating copyright to property inevitably leads to its expansion.

As copyright holders’ legal and technical powers of control increase, as much as users’ power of uses of copyright works multiply, the temptations of drifting one way or the other on the debate regarding the property attributes of copyright are high. I argue that misinterpreting the consequences of the property attributes of copyright may lead to unwarranted expansion, but that distancing copyright from property for fear of expansionism is problematic from a legal and normative standpoint.�� Acknowledging the property attributes of copyright has the important additional benefit to reveal more sharply the inherent tension that subsists between the competing property rights of copyright holders and users in the embodiment of the works. It levels the playing field by minimizing the tendency to apply double standards to the competing rights.

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Pascale Chapdelaine is Associate Professor at the University of Windsor, Faculty of Law, and is a member of IP Osgoode. Pascale Chapdelaine is presently writing a book on copyright user rights (under contract with Oxford University Press).

The article is based on one of the chapters of Pascale’s doctoral thesis that Pascale defended in June 2013 at Osgoode Hall, under the supervision of Professor Giuseppina D’Agostino. Professors David Vaver (Osgoode Hall) and Geraint Howells (City University of Hong Kong) were on Pascale’s thesis committee.

[1] James W. Harris, Property and Justice ��(Oxford: Clarendon Press, 1996).

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This paper will appear in an upcoming issue of the Intellectual Property Journal. The paper builds on Pascale’s Ph.D. thesis work that Pascale defended in June 2013 at Osgoode Hall, under the supervision of . (Osgoode Hall) and Geraint Howells (Manchester School of Law, UK) were on Pascale’s committee. Earlier versions of this paper were presented at the Oxford Intellectual Property Research Centre (May 2013) and at the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP) Conference (June 2013, Oxford UK).

In “The Ambiguous Nature of Copyright Users’ Rights”, Pascale investigates the nature of exceptions to copyright infringement, or users’ rights, as they are laid out in Canada’s Copyright Act and through copyright jurisprudence, as well as through their interaction with contracts and technological protection measures [TPMs]. What is the significance of the Supreme Court of Canada characterization of exceptions as users’ rights? Are exceptions to copyright infringement rights or privileges? Are they mandatory?

While copyright users’ rights and interests have triggered significant interest and debate, including amongst scholars, legal practitioners, creators, institutional users, content integrators and business intermediaries, relatively less attention has been given to defining their precise nature, and on the consequences of the main characteristics of exceptions to copyright infringement on copyright law and policy. Pascale investigates the nature of copyright users’ rights under Canadian copyright law and in a global context, looking at other jurisdictions and international conventions.

Pascale begins her analysis by looking at four exceptions to copyright infringement that were introduced to the Copyright Act in 2012 (i.e., the non-commercial user-generated content, the reproduction for private purposes, the later listening or viewing and the backup copies exceptions to copyright infringement) with a particular focus on their relevance for consumers and their relation to pre-existing users’ rights. Pascale then examines the interplay between the users’ rights set out in the Copyright Act and how they can be altered or overridden by non-negotiated standard end-user agreements and TPMs. To this end, Pascale refers to a sample of non-negotiated standard terms of use for the online distribution of books, musical recordings, and films. Pascale investigates the nature of exceptions to copyright infringement, including through Wesley N. Hohfeld’s theory of jural correlatives. Pascale analyses the policy considerations behind these questions and concludes by reflecting on the potentially damaging effects of the uncertain nature of users’ rights to copyright law and policy.

Dr. Pascale Chapdelaine is Visiting Scholar and Adjunct Professor at the University of Toronto, Faculty of Law for the academic year 2013-2014, and is a member of IP Osgoode.

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Pascale Chapdelaine is a PhD candidate at Osgoode Hall Law School and a member of IP Osgoode. Her current research seeks to define and substantiate consumers’ rights with respect to copies of copyrighted works that consumers lawfully access.

In a Brief submitted to the Legislative Committee on Bill C-32, I offered some comments on the “Trio Provisions”.�� These provisions seek to clarify the rights of individuals who access copyrighted works, e.g., the provisions on “Non-commercial User-generated Content”, “Reproduction for Private Purposes” and��“Fixing Signals and Recording Programs for Later Listening or Viewing”.��To read the Brief, click .

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My current research work to substantiate and better define consumers’ rights to copies of copyrighted works recurrently leads towards one of the great contemporary legal challenges: the nature of and interaction between property and contract law. What framework is most apt to pursue the goals of copyright law (as understood from the broader perspective of authors, copyright holders and users) and to what extent do we allow contract to alter property rights and vice versa? These questions are even more crucial in consumer transactions whereby the property rights at play can be altered by copyright holders (and distributors) through standardized non negotiated contracts.

Copyright is a distinct and unique form of property. Its constitutive statute, the Copyright Act (L.R.C. 1985, ch. C-42, the CCA) remedies to its non rivalrous nature, by spelling out a list of exclusive rights conferred to the copyright holder (which includes authors) of a copyrighted work and which are opposable to all. It also confers trespassory powers in the form of various remedies against copyright infringement. At the same time, the CCA gives a lot of flexibility in how copyright holders can authorize others to have access to what the law spells out as their exclusive domain. ��There is a prevailing assumption that copyright holders are legitimately free to decide what, how,�� to whom and when they should grant permission or assign their rights, without any duty to account to any one. As the Supreme Court of Canada noted in Robertson, “parties are, have been, and will continue to be, free to alter by contract the rights established by the Copyright Act.”¹�� This is consistent with the privileges and powers conferred by property, and the self-seekingness that it entails.²�� Leaving aside the appropriateness of the current scope of copyright holders’ exclusive rights, this freedom is legitimized when it is exercised within the confines of the property rights that are created in the first place. It is less certain when this contractual liberty expands the property rights beyond what Parliament has initially conferred by statute. The ongoing debate around digital locks and their effect on fair dealing and other limitations to copyright is one illustration of this tension. The uncertainty of the applicability of the first sale doctrine in the context of digital distribution is one other example, and the one I reflect upon more particularly in this blog.

A copyrighted work that is commercialized to the public traditionally involves the co-existence of at least one other property interest (in addition to the exclusive rights of the copyright holder) e.g. the personal property right in the embodiment of the copyrighted work. The co-existence of two competing property owners in a commercialized copyrighted work has given rise to the first sale doctrine in the U.S. (referred to as “exhaustion” in other jurisdictions including Canada).³�� Under that doctrine, once the first sale of a chattel embodying a copyrighted work (such as a book or a music CD) has occurred, the copyright holder cannot dictate the fate of subsequent transfers of that chattel. The doctrine of first sale finds its roots in the English common law rule against restraints on alienation of property.⁴�� In effect, it modulates two competing property interests in the copyrighted work, e.g. the intangible exclusive rights of the copyright holder in the copyrighted work and the property rights in the tangible embodiment of this work by the purchaser. One limits the rights of the other and vice versa (although very asymmetrically, as the exclusive rights conferred by copyright impose greater limitations on copy ownership than the reverse).�� First sale is also consistent with the normative values of freedom and autonomy that underlie property including chattels, as well as the instrumental goals of copyright to encourage the creation and dissemination of copyrighted works, when viewed from a broader perspective that also encompasses users of copyrighted works.��

Traditionally, a consumer accessing a commercially available copyrighted work does it through the purchase (or rental) of the copy of the copyrighted work (a book, a CD, a DVD). At the same time, she is constrained by the exclusive property rights of the copyright holder in the copyrighted work embodied in the copy. Sometimes, a licence dictates the terms of access to the exclusive rights of the copyright holder..For some years, software distributors have licenced (not sold) the physical embodiment of the software, in addition to the licence to the intellectual property rights in the software. This practice is expanding to other types of copyrighted works including e-books. In the U.S., the law is still unsettled as to the characterization of the physical embodiment portion of such transactions as sales or as licences. In decisions where courts agree to the label of “licence” as set by copyright holders, it effectively annuls the application of the first sale doctrine and permits copyright holders to impose restrictions on subsequent transfers in the copy of the copyrighted work. A recent example is the U.S. Court of Appeals, Ninth Circuit decision in Autodesk.⁵�� The split decisions around copy ownership illustrate the ambivalence that courts have with respect to legal transactions that create restrictions on what otherwise resembles a sale. In those particular cases, the purchaser/licensee is granted an indefinite licence to the copy of the copyrighted work with no obligation to return it, but is restricted on her ability to transfer the copy or assign it. These contracts do not sit well with commonly known contracts of sale, rental, or even licence, the latter being traditionally associated with the intangible exclusive rights of copyright (and other IP rights) holders, as opposed to the physical embodiment of the work.

Reframing legal transactions to known categories of property interests is referred to as the numerus clausus principle, whereby only a limited number of known property interests are recognized and enforced.⁶�� The justification for the numerus clausus ��principle (i.e.“closed number”) which in effect constrains freedom of contract, is attributed to a need to preserve efficiency in transactions that involve the transfer of property, by significantly reducing search and transaction costs that relate thereto. Numerus clausus is one legal mechanism that has ensured the robustness and relative coherence of property to this day, by preserving the important notification function of property -e.g. that the attributes of property and ownership are generally known to all with no need of lengthy lists of permitted uses, and searches for scope of rights, etc..

The practice to licence the copy of a copyrighted work with no right to transfer or assign the copy (as opposed to a sale or a rental of limited duration) is advantageous to copyright holders who gain control of secondary markets, one of the effects that the first sale doctrine initially intended to constrain. It allegedly supports copyright holders’ efforts to control copyright infringement. It has been argued that substituting copy sales by copy licences is beneficial to consumers who will gain access to the copyrighted work at a lesser price (as the copyright holder can expect to make more sales by controlling ��secondary markets). In fact, other drivers, including the decrease in production and distribution costs of online copyrighted works, may already favor price reductions to the benefit of consumers. While consumers may end up paying less, they are also receiving less than a copy they own. Already compromised (relative to other chattels not embedding copyrighted works) one of the most fundamental powers of ownership (alienation -- and the self-seekingness that comes with it) ��is being eradicated by such copy licencing practices.�� More fundamentally, the question is the extent to which copyright law should entitle its holders to effectively expand their rights over and above the exclusive rights that are conferred by the CCA, and the effect it generally has on other competing rights. Nothing in the CCA explicitly constrains this expansion, just as it does not currently explicitly nullify any contractual attempt to restrict exceptions to copyright infringement.⁷�� External to the framework of the CCA, this question also raises the potential application of other laws and doctrines such as consumer law and the doctrine of copyright misuse.��

For consumers, freedom of contact means the choice between clicking on the “I agree” button and surfing away. The efficiency rationale behind the standardization of property interests (which allows for the reduction of transaction costs) is an even more compelling consideration for consumers than it is for other institutional users of copyrighted works. If the practice of licencing in lieu of selling copies of computer programs still encounters resistance from consumers, distributors and the courts to this day, it is likely to face even more resistance with respect to other copyrighted works for which there exists a pre-existing framework of reference of copy ownership. Property and ownership are hard wired concepts that are entangled with even deeper values of freedom, autonomy, certainty and economic efficiency. The application of the numerus clausus principle to the commercialization of copyrighted works and its implications on the viability of the first sale doctrine, merit further exploration to better understand how copyright, property and freedom of contract, co-exist with one and the other.

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¹ Robertson v. Thomson Corp., [2006] 2 S.C.R. 363, 2006 SCC 43, at paragraph 58.

² J. W. Harris, Property and Justice (Oxford: Clarendon Press, 1996) at 5.

³ In the U.S., this doctrine has been codified: 17 U.S.C. § 109. 109 (a). There is no similar provision in the CCA ��although there is some recognition that a similar principle applies in Canadian copyright law. Bill C-32, An Act to amend the Copyright Act, 3^rd Session, 40^th Parl., 2010 (1sr reading June 2, 2010) explicitly introduces the concept of exhaustion in cl. 4, 9 and 11.

⁴ For historical references on the doctrine of first sale see J.P.Liu,�� “Owning Digital Copies: Copyright Law and the Incidents of Copy Ownership” (2001) 42 William and Mary Law Review, 1245, at 1291-1292 and notes 163 to 166.

⁵ Vernor v. Autodesk, Inc, 10 Cal. Daily Op. Serv. 11, 903 (U.S. 9^th Cir., 2010).��

⁶ The application of the ��numerus clausus principle to intellectual property and virtual worlds is discussed in: J. M. Moringiello, “What Virtual Worlds Can Do For Property Law” (2010) 62 Fla. L. Rev. 159.

⁷ The proposed provisions of technological protection measures in Bill C-32 would reinforce the freedom that copyright holders presently have in that respect under the CCA.

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As the spheres of interest of consumers and copyright holders get closer in the Digital Age, there is a pressing need to get to know (and eventually confront the needs of ) consumers of copyright-protected materials.�� An increasing body of academic literature looks at copyright users¹ (often indiscriminately). Within that area of research, there are important justifications to zoom in on individual consumers more specifically (i.e., those physical persons who perform commercial transactions for personal purposes). While they share common interests with other users (just as they also do with copyright holders), consumers have little in common with broadcasters, film producers and even educational institutions, all larger copyright users.

The Neglected Consumer

We seem to have neglected consumer protection in the last decades as a stand alone deserving field of study. The free market enthusiasts among us have been very influential and skilled at convincing governments that market forces could take care of consumers and that minimal intervention in their name was only necessary when a market failure had been identified. Also, the lines between private and business spheres, home and work, personal and commercial purposes have all become blurrier than ever. Everything is interchangeably portable, making the classic definition of “consumer” more confusing than ever before.

It is arguable that there is merit (perhaps more than ever before) in preserving a distinct “consumers’ zone” that is equally portable. It is the one inhabited by physical persons who in their private sphere make commercial transactions and experience goods for personal purposes. They share common and distinct values and aspirations that our society needs to cherish, promote and protect.

Digital Music as a “Commoditized Good”

The underlying copyright in music does not take away the mass market nature of digital music whether it is distributed through CDs or online. As a starting point of the analysis, consumers should get the same minimum level of protection that they get for other goods (including implied conditions of quality, fitness for purpose and of quiet possession)².�� As uncontroversial as this proposition may seem, it is less than certain that current Canadian laws support it. The fact that music is an intangible and that it is not sold but licensed still gives rise to a lot of uncertainty as to the applicability of Canadian provincial sale of goods laws (and the Québec Civil Code).

Indeed, it is not clear that sale of goods laws’ implied conditions (and Québec Civil Code) apply to the intangible aspect of digital music, largely predominant over the physical medium, when there is any. Common law warranties similar to the statutory implied conditions may apply, but their nature and scope are not providing much greater certainty. Consumer protection laws often provide that those statutory implied conditions cannot be contracted out in consumer transactions. This offers little help if they do not apply in the first place.������������

Confirming the applicability of sale of goods laws implied conditions (and consumer protection laws making implied conditions obligatory in consumer contracts) would start an interesting conversation. The scope of permitted use of digital music, as dictated by technological protection measures and/or contract terms would then be analyzed through the implied conditions of quality and fitness for the purpose for which the product was intended. For example, can the music provider limit the scope of use to certain audio devices or the number of copies permitted for time-shifting purposes? Also, can the music provider negate “users rights” provided in copyright law such as under the private copying regime for musical recordings or fair dealing provisions? Do digital rights management systems (“DRMs”) breach the implied condition of quiet possession?�� Given the hurdles on the applicability of sales of goods laws to the largely prevailing intangible aspect of digital music, much of these questions have been left unexplored.

Consumers and Copyright Works

One key question is whether consumers require even greater protection with respect to copyright works than with respect to other goods.�� The rationale supporting greater protection is that consumers interact differently with copyright materials than with traditional consumer goods. There are rights and values that are involved in this interaction (such as freedom of expression, creativity, privacy) that are fundamental in free and democratic societies. Whether there is a need to provide that greater protection depends heavily on the consumer that lawmakers envisage or want to promote. Is it a passive or an active consumer (or “consumer-author”)? And is the nature of the consumer still being defined in the Digital Age?�� What aspirations are reasonable and justify protection?

In Canada, the Copyright Act has been 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 (or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated)”³. Recognizing that consumers are also an integral part of the process of culture and innovation, and that this sphere is not limited to authors and copyright holders, brings another weight in the balance.

It is arguable that lawmakers predominantly have a passive view of consumers of copyright works. Between the passive consumer and the consumer as author (which through her transforming acts, already receives some protection under copyright laws), there is a broad category of consumers who may also be closely aligned to one of the core objectives of copyright law, to promote and incent creativity and innovation.

Introducing a “private purpose” right for consumers, similar to what was proposed in Canadian Copyright Reform Bill C-61,⁴ would be an endorsement of the legitimate space that is required for consumers to deploy their participatory innovation aspirations to a greater potential. This private purpose right would define a virtual space in which consumers are allowed to perform a broad range of acts of a non-commercial nature for themselves and as they interact within their private spheres.

It All Revolves Around the “Purpose”

Clarifying the scope of use of digital music and other copyright works for private purposes could be perceived as an expansion of “users’ rights” and could on that basis receive fierce opposition by copyright holders. Free market believers will argue that copyright holders alone should determine the permitted scope of use of copyright materials.�� Further, they will argue that free competition will ensure that consumer interests are adequately preserved, inadvertently forgetting that copyright is a state granted monopoly that needs to be constrained within the limits of its core purpose. Moreover, the constant threat of piracy justifies that copyright holders have “carte blanche” for the secure dissemination of copyright works. Last but not least, any breathing space given to consumers should not unreasonably interfere with the copyright holders economic interests as per the “three-step test” for exceptions from copyright under various international treaties.��

These concerns are legitimate, however one pivotal word taints the discussion and that is “purpose”. We seem to have lost the sense of purpose in copyright law.�� Refocusing on a justifiable and proportionate incentive system to promote creativity and innovation, recognizing that consumers are integral to the realization of this purpose, as opposed to passive receptacles, would be a start. In the same vein, we also need to shift the copyright framework from an act-based set of exclusive entitlements to a purpose-based one.�� This would include a clearer delineation between commercial-based uses and non- commercial ones and how they are linked to the economic rights of the copyright holder. Focusing on purpose in those three instances may be showing a path towards some reconciliation.����

Conclusions

Dusting off old sale of goods and consumer laws for the Information Age, redefining the consumer we want to promote, and introducing a private purpose right in copyright law, are lower common denominator propositions. They are not likely to fully satisfy those consumers who believe they should get everything for free. To copyright holders, the relief may prove to be greater than the sacrifice. More clarity could go a long way in alleviating the irritant of fights against consumers for limited gains (never a good place to be in business). Such tune-ups may not make all interested parties sing in harmony but it will reduce a lot of unnecessary confusion and give consumers some breathing space. With that, it will arguably bring greater credibility to copyright law and hopefully, more respect for the legitimate interests of copyright holders.

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¹ This includes the works of Jessica Litman, Niva Elkin-Koren, Deborah Tussey, Josef Liu, Julie Cohen, Lucie Guibault, Natali Helberger and P.Bernt Hugenholtz. Some of these authors have already put forward similar recommendations to the ones discussed in this article.

² The Canadian Copyright Act does not have a pre-emption clause.�� The U.S. Copyright Act takes precedence over any conflicting state laws. By the Federal nature of the Canadian Copyright Act, some precedence principles apply.�� Also, in the U.S. the Uniform Computer Information Transactions Act (“UCITA”) is one recent attempt to address the trade in intangibles in the Information Age

³ �ճ�é��������� v. Gallerie d’art�� du petit Champlain Inc. [2002] 2 S.C.R. 336. In the U.S. Article I, section 8 of the Constitution of the United States places the promotion of innovation and creativity at the forefront of the copyright objectives with no reference to a need to reward authors.

⁴ Bill C-61 An Act to amend the Copyright Act, presented on June 12, 2008, s. 17.��

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This article��is based on a paper presented at the conference: on September 18, 2009, organized by IP Osgoode.�� The article originally appeared in����(click to view a sample PDF of vol 13,��issue 4).��

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What is the consumer entitled to do with musical recordings for her own personal use? Asking this question may appear to some, including consumers, as looking for trouble. Yet new technologies have proven to be an empowerment as well as a threat to both the consumers and copyright holders. How far can technological protection measures go? Is it a matter to be determined solely by terms of use, or can copyright "user rights" as recently so labeled by the Supreme Court of Canada be invoked to counter them?

To these questions, the Canadian Copyright Act¹ (the "CCA") offers no clear-cut answer. Between the narrow scope of the private copying regime (s.79 to 88 of the CCA) and the new realm of possibilities opened up by the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada²(" CCH") on the application of the fair dealing provisions, one is left with more questions than answers.

As the music industry is adjusting its methods of distributions to the digital world, various models emerge, from restrictive terms of use with or without technological protection measures (ex: iTunes Plus) to no terms and conditions with technological protection measures, to other combinations of the above.

In this landscape of legal uncertainty and various terms of distribution, what weight should we give to the "reasonable expectation of the consumer" to clarify what is the scope of permitted use of musical recordings for personal use?

The "reasonable expectation of the consumer" is a test borrowed from contract law. It helps delineate the scope of implied or unclear terms in a contract. The expectation needs to be demonstrable and within reasonable limits: not all expectations would be taken into account. As musical recordings may be accessed lawfully without specific terms of conditions of use being attached to them (e.g. through the purchase of a CD or allowing a friend to borrow that CD) this test could apply in that instance. The test could also be useful to assist the judiciary in defining the scope of consumer "user's rights" of a broad range of copyright materials, as well as assist Parliament in the context of copyright reform.

Although I am not aware of any decision in Canada having applied this test specifically to define the scope of permitted use of copyright materials, at least two French tribunal decisions have considered the reasonable expectations of consumers with respect to the scope of use of purchased CDs of musical recordings³. ��In assessing what that reasonable expectation could be, the following factors could be taken into account: price, industry practice (including terms of use and technological measures), available technology to access the musical recordings and consumer trends as reflected in consumer surveys. The interests of copyright holders and the highly publicized music industry practice of pursuing alleged consumer infringers could be factors tending to limit the expectations of consumers. For its part, the lack of clarity of the CCA on the scope of permitted use of copyright material for personal use could either be interpreted as creating no expectation at all, or expectations that are strictly limited to the private copying regime⁴. ��Conversely, it could give way to the application of the "reasonable expectation of the consumer", precisely to fill the gap left by that lack of certainty on the scope of permitted use for personal purposes. In CCH, the Supreme Court of Canada does not refer specifically to the reasonable expectation of the consumer (or user) as one of the factors to establish whether the dealing of copyright material is fair. However, as stated by the Court, the six factors used are not exhaustive⁵, which opens the door to other considerations, such as the reasonable expectation of the consumer. Also, the Court refers to industry practice as one means to establish whether the character of the dealing is fair, a factor also considered to determine the reasonable expectation of the consumer.

Applied to the interpretation of a contract between a consumer and a distributor of musical recordings, in some cases, specific terms of use brought to the attention of the consumer could defeat any consumer expectation contrary to the notified terms. A general notification of a technological measure preventing copying may not suffice, as recently held by a French tribunal⁶. ��On the other hand, one may reach a different conclusion if the contract term (whether the consumer is notified or not) would amount to overriding one of the exceptions to copyright infringement of the CCA, recently characterized as "user rights" in CCH, on the basis that such rights may not be contracted out. It seems that in such a case, it is not the reasonable expectation of the consumer that would be at stake but rather the permitted scope of rights and restrictions that may be the object of the contract pertaining to the copyright work.

While the "reasonable expectation of the consumer" test offers flexibility and room to grow as market conditions, and cultural and innovation policy reflected in copyright law continue to evolve, its application is not without difficulty. The few questions raised above, such as the interaction between the CCA (including the private copying regime) and contracts, and their effect on consumer expectations, require further investigation. However, the reasonable expectation of the consumer test has the merit of providing a framework to "streamline" the consumer perspective on this boiling copyright issue, within a legal regime that has traditionally predominantly focused on the copyright holder. In that context, a greater articulation of consumer interests is an imperative and an interpellation in the aftermath of CCH. The reasonableness requirement attached to the consumer expectation may also be in tune with the need to balance the interests of the copyright holders and their users, as recently reiterated by the Supreme Court of Canada⁷. For that reason, this test may in the future have some weight in the balance.

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¹ R.S.C. 1985, c. C-42.

² [2004] 1 S.C.R. 339, 2004 SCC 13.

³ Tribunal de Grande Instance de Nanterre 6ème chambre Jugement du 2 septembre 2003, Françoise M.��/ EMI France, Auchan France available at��: .; Tribunal de grande instance de Paris 5ème chambre, 1ère section Jugement du 10 janvier 2006; reversed on appeal on ground of lack of evidence of disfunction of CD on various computers��: Cour d'appel de Paris 4ème chambre, section A Arrêt du 20 juin 2007 Fnac Paris / UFC Que Choisir et autres available at��: ; confirmed by ��Cour de cassation 1ère chambre civile 27 novembre 2008 UFC Que Choisir / Fnac, Warner music France, available at:

⁴ For a general discussion on consumer law, copyright law and the private copying regimes in Europe, see N.Helberger, & P.B. Hugenholtz, "No place like home for making a copy, private copying in European copyright law and consumer law" (2007) 22 Berkeley Tech. L.J. 1061; for its analysis�� on the reasonable expectation of consumers, see pp 1084-1089.

⁵��G. D'Agostino, "Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use" (2008) 53 McGill L.J. 309, at 320, also for its analysis of the impact of CCH.

⁶��Tribunal de Grande Instance de Nanterre 6ème chambre Jugement du 2 septembre 2003, supra note 3. In that case, a consumer protection agency and a named consumer complained that a CD could not be used on car CD players while other CDs could. There was a general notification on the CD of a technological protection measure: «��Ce CD contient un dispositif technique limitant les possibilités de copie��» («��this CD contains technical measures that limit copying��»). This did not prevent the Tribunal from ordering the music distributor EMI France to reimburse the consumer for the CD as well as to cover other costs.

⁷ �ճ�é��������� v. Galerie d'Art du Petit Champlain inc., [2002] 2 S.C.R. 336, 2002 SCC 34l, paragraphs 30 and 32; CCH Canadian Ltd. v. Law Society of Upper Canada, supra note 2., paragraph 48.

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