Copyright User Rights and Access to Justice Symposium Agenda with LTEC branded pen on topWindsor Law’s LTEC Lab hosted a conference entitled, “Copyright User Rights and Access to Justice Symposium” on May 18th and 19th at Vanier Hall on the main campus. The conference made use of the Supreme Court of Canada’s decision in CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13, as a starting point in asking how the nature of copyright user rights has evolved over time both in Canada and worldwide. The Symposium synopsis and presenters presentation are available here. Through the use of panel discussions and presentations of papers by legal scholars and copyright specialists, the conference approached the issues surrounding copyright user rights from an international, multi-jurisdictional/interdisciplinary perspective and also addressed copyright theory, human rights, property and contract law, remedies, social justice, access to justice, the relevance of international conventions in these matters, and access to learning from a historical copyright law perspective. Further topics of discussion included the effects of copyright law on the creation and dissemination of copyright works, as well as possible remedies and reforms to put in place.

 

After opening remarks, by the conference organizer, Professor Chapdelaine, Associate Professor at Windsor Law and by Dean Chris Waters, Professor Chapdelaine took part in a Q & A conversation with Professor David Vaver from Osgoode Hall Law School on the evolution of copyright user rights. Professor Vaver provided historical insights into what led to the Supreme Court of Canada CCH judgement declaring that exceptions to copyright infringement are “user rights.” For Professor Vaver, user rights as entitlements or privileges need to have a central place in copyright law. Why grant protection to copyright holders if it is not for works to be accessed, read experienced by an audience of users ? Professor’s Vaver’s full Q & A can be viewed here.

 

The first panel, chaired by Professor Séverine Dusollier from SciencesPo Law School, addressed critical approaches to copyright user rights. As a part of this panel, Carys Craig, Associate Dean (Research & Institutional Relations) and an Associate Professor at Osgoode Hall Law School, presented her paper entitled “Relying on (User) Rights-Talk: On Copyright Limits and Rhetorical Risks.” Professor Craig’s presentation dealt with the rhetoric of rights in copyright law, with a specific focus on how our conceptualization of these rights and privileges affects our understanding of the lawful uses and the availability of copyright works. While not advocating strictly for either user or owner’s rights, Professor’s Craig’s paper explored the tension that exists between expanding exceptions to further public interest in favour of users while also resisting the “rights rhetoric,” which has historically been invoked in favour of copyright owners.

 

Also part of the first panel, Ariel Katz, Associate Professor at the University of Toronto Faculty of Law, presented his paper, “On the Partial (In)Alienability of Users’ Rights,” which focused on the restrictions of user rights that often accompany digital works, such as through End User License Agreements, Terms of Use, and TPMs (Technological Protection Measures). In order to reconcile the respective rights of owners and users when it comes to restrictions of these sorts, Professor Katz suggested that the starting point be that of presumptive inalienability of users’ rights that can be rebutted by showing compelling evidence that the restriction of user rights is justified by pursuing the purpose of copyright. He was followed by Bob Tarantino, Counsel at Dentons Canada LLP and PhD student at Osgoode Hall Law School, presenting his paper entitled “Calvinball: Users’ Rights, Public Choice Theory and Rules Mutable Games,” which examined users’ rights in Canada using public choice theory. Utilizing the fictional game of Calvinball from the comic strip Calvin & Hobbes as a metaphor, Mr. Tarantino argued that copyright reform is similar to a game in which the rules can be modified while the game is being played, and how this may lead to detrimental effects on copyright users. Mr. Tarantino suggested the need for a culture of fairplay and reasonableness in copyright law reform in order to ensure that all stakeholders, such as both users and owners, are treated fairly and equitably.

 

The second panel of the conference was in relation to copyright user rights and access to knowledge. Professor Ruth Okediji, William L. Prosser Professor of Law at the University of Minnesota, presented her paper, “Reframing International Copyright Limitations and Exceptions as Development Policy” in which she argued that existing international copyright limitations and exceptions do not promote optimal socio-economic development for all populations. Professor Okediji advocated for a culturally sensitive and contextual approach to framing user rights while also highlighting the need to create a fair international framework for tackling socio-economic developmental concerns using copyright law.

 

Next on the panel, Professor Myra Tawfik of Windsor Law presented her paper, “Encouraging Literacy and Learning: The ‘Learner’ at the Origins of Copyright Law in Canada” in which she traced the historical origins of copyright law as it relates to access to education and public policy. Professor Tawfik was followed by Arul Scaria, Assistant Professor of Law at the National Law University in Delhi and Co-Director for Innovation, IP and Competition, presenting his paper, “Photocopy Shop Judgement: An Attempt to Strike a Balance between the Rights of Users and Producers of Knowledge Goods?,” which addressed a recent decision of the High Court of Delhi that involved a copyright dispute between major publishers and a small photocopy shop operating within the University of Delhi (The Chancellor, Masters & Scholars of the University of Oxford & Ors. v. Rameshwari Photocopy Services, Delhi High Court, 2016). Professor Scaria highlighted the Court’s statement that copyright holders’ rights and exceptions to copyright infringement needed to be treated at par. Professor Scaria also indicated how the Court took into consideration the Supreme Court of Canada jurisprudence on copyright user rights.

 

Also part of the second panel were Bita Amani, Associate Professor at Queen’s University, and Mark Swartz, Copyright Specialist at Queen’s University, presenting their paper entitled “Cultivating Copyright Custodians for the Digital Age: Law Libraries & Public Interest in Lending (Obsolete Formats).” Professor Amani and Mr. Swartz discussed how the technological changes in the digital era have altered the traditional role of libraries and the ways in which libraries can successfully transition to accommodate marketplace needs of the digital era. Capping off the first day of the conference, Uchenna Felicia Ugwu, PhD student at the University of Ottawa, presented on her paper entitled “Reconciling the Right to Learn with Copyright Protection in the Digital Age: Limitations of Contemporary Copyright Treaties” in which she explored how access to technology plays a pivotal role in the right to learn, and the ways in which copyright regulations often impact this access.

 

The second day of the conference began with a panel chaired by Professor David Vaver on the topic of copyright user rights and human rights. Saleh Al-Sharieh, Postdoctoral Researcher at the University of Groningen, started off the panel by presenting his submission, “Securing the Future of User’ Rights in Canada,” which explored the shortcomings of balancing users’ rights and suggested a human rights approach as an alternative means of framing copyright exceptions and limitations. Continuing on the topic of human rights, Meera Nair, Copyright Officer from the Northern Alberta Institute of Technology, presented her work entitled “Fair dealing: Equal under the law and inviolate in contract” in which she examined equality rights in Canadian history to better understand the concept of users’ rights, with special attention paid to Aboriginal rights and perspective. The panel was rounded off by Amy Lai, PhD Candidate at the University of British Columbia, who explored the right to parody and satire in current Canadian law as discussed in her submission, “The Natural Right to Parody: Assessing the Parody/Satire Exceptions in Canadian Copyright Law.”

 

The fourth and last panel of the conference dealt with the enforcement and reparation of copyright user rights. Professor Séverine Dusollier (SciencesPo Law School) presented on her paper entitled “Users’ rights in copyright as inclusive rights: A model for enforceability and sustainability of privileged uses of works,” which concerned user’s entitlement in works. On the issue of balancing rights in copyright law, Professor Dusollier proposed a new legal figure for inclusive rights and applied it to copyright exceptions, public domain works, and copyleft licenses. She was followed by Professor Pascale Chapdelaine, who presented on her paper entitled “Copyright Users: Rights without Remedies? An Access to Justice Perspective.” Along with discussing the root causes of the lack of remedies available to copyright users, Professor Chapdelaine suggested possible reforms to alleviate these issues, such as placing the onus on holders to grant access to works and regulating copyright holders’ commercial practices when they deviate from the core objectives of copyright law.

 

The event wrapped up with a final Q & A period, followed by concluding remarks.

 

Congratulations to all of the participants and legal scholars for their excellent submissions, and to Professor Pascale Chapdelaine, Erica Lyons, and all of the Windsor Law staff for organizing a wonderful and thought provoking symposium!

 

Madiha Khan, Student Writer, Windsor Law’s LTEC Lab