If copyright were ever simple, Robertson v. The Globe and Mail would be dead simple. They stole the rights, they get hammered.
But copyright never is. And this Supreme Court of Canada has been cobbling together an interpretation of copyright law that is both user-friendly and creator-hostile.
In cases like Thiverge, the Supreme Court seems to have begun theorizing that since creators really create for the sheer love of it and can live happily on air and arts grants, there’s no social benefit created when the law respects or protects creators’ economic rights. On that looney theory, you could imagine them supporting the Globe’s right to plunder creators’ rights.
It would be a kamikaze victory for the publishers. If the Court gives the publishers a win, it will be by creating a new user’s right: essentially, the right to take copyright material without payment or permission. Vis-a-vis creators, publishers are users, of course, and they would love to have this freedom reinforced by the courts.
But whatever the SCC provides will be used by end-users against publishers.
In their eagerness to plunder creators, the publishers may be setting up the conditions for their own plundering.
Of course the Court could save the publishers from themselves by giving Robertson et al a big win. Here’s hoping.