Copyright Infringement without Copying - Reflections on the Thèberge Case

Abstract

This article addresses the content of two fundamental rights of the bundle of copyrights: the exclusive right to reproduce a work (the Reproduction Right) and the exclusive right to prepare derivative works based on the protected work (the Adaptation Right). Despite being fundamental, the exact boundaries of these two rights and the difference between them are elusive.

The catalyst for dealing with these basic issues in the law of copyright is the Canadian Supreme Court's decision in the case of Thèberge v. Galerie d'Art du Petit Champlain Inc. [2002] S.C.C. 34. The factual scenario in this case involved a situation in which a person purchased a lawful, tangible copy of a copyrighted work, modified it physically, and then resold it. The question is whether this scenario constitutes copyright infringement, and what the applicable law is. This raises complicated problems that necessitate a clarification of the fundamental elements and doctrines in copyright law, such as what reproduction is exactly, what the precise extent of the Adaptation Right is, and whether the physical act of copying is inherent to their infringement. Moreover, we shall mark the relation between the two Rights, and determine the role of the first-sale and implied consent doctrines in such cases.

The Canadian Supreme Court did not, unfortunately, use this opportunity to resolve some of the fundamental ambiguities in copyright law. Moreover, the Court's decision reflects an erroneous interpretation of the Reproduction and Adaptation Rights, motivated by an irrelevant attempt to exclude civiliste doctrines form Canadian copyright law. Since the Thèberge holding has far-reaching implications, especially in light of the constant debates concerning different technologies used in the digital and internet environment for exploiting and communicating protected works, it is therefore most important to examine and try to correct its failings and shortcomings.

Keywords: Intellectual Property, Copyright, Canadian Copyright Law, Reproduction, Adaptation, First-Sale Doctrine, Implied-Consent Doctrine, Integrated Works