Application of the right of reproduction to the internet : should browsing be considered copyright infringement?
University of British Columbia
Master of Laws - LLM
The application of the right of reproduction, found in section 3 of the Copyright Act, R.S.C. 1985, c. C-42, to Internet browsing results in the conclusion that the mere viewing of a website or digitally accessing a work is potentially an act of copyright infringement. Such a conclusion is tantamount to granting copyright owners the right to control reading and to dictate how the public may legitimately use copyrighted works. This is an undesirable result in light of copyright law policy goals, and cannot be justified under the utilitarian approach to copyright law. There should be an implied licence to make temporary reproductions of copyrighted works expressed in digital form necessary for acts of digital communication like Internet browsing. A copyright regime that recognizes the difference between reading and browsing on the one hand, and copying on the other, is needed. The viability of an implied licence in this context is examined using a primarily doctrinal method, based on traditional concepts of legal research. Elements of a law and society approach are also incorporated. Other options, such as express licence and the introduction of an appropriate statutory exception based on the Australian model, are also explored and recommended. The rise of digital media, the creation of a global market, and the popularization of the Internet have brought about powerful cultural changes which demand that our perceptions of intellectual property rights be revisited. Due to the inherent differences between the print and digital environments, copyright law needs to adapt, on the basis of public policy, to the differences in the current copyright market. The efficacy of continuing to use reproduction as the means of measuring copyright infringement is discussed in light of this. Core intellectual property institutions in Canada are reviewed, along with an examination Of the relevant World Intellectual Property Organisation treaties and the American approach to copyright law in a digital context. Canada should not follow the American model, as it is overly protectionist and fails to strike an appropriate policy balance between the various stakeholders and competing interests involved in copyright law.
Law, Peter A. Allard School of