Day: May 21, 2014

Copyright Law Basics (1) – Copyright is a Balancing Act

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By Alan Kilpatrick


“A copyright will protect you from pirates. And make you a fortune.”

Copyright is presently a hot topic in Canada.  Discussions about copyright often lead to contention and controversy.  A basic understanding of copyright law can help ensure fair and equitable access to law, justice, and information.

What is copyright?  Copyright law strives to encourage new ideas and the dissemination of knowledge.  We can think of copyright primarily as a balance between two different interest groups:  copyright owners and copyright users.  Copyright owners hold the copyright in works.  This can include publishers, artists, writers, or creators.  Copyright users are those who use and enjoy copyrighted works.  This includes consumers.

Two influential Supreme Court of Canada decisions have shaped the discussion on copyright balance:

CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 explained that the Copyright Act, RSC 1985, C-42 has dual objectives and goals,

The Copyright Act has dual objectives…usually 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…The proper balance among these…lies not only in recognizing the creator’s rights but in giving due weight to their limited nature. In interpreting the Copyright Act, courts should strive to maintain an appropriate balance between these two goals.

Théberge v. Galerie d’Art du Petit Champlain inc., 2002 SCC 34 recognized the importance of maintaining this balance,

The proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them…

Copyright that lacks this balance, where things are tilted too far towards the interests of one group or the other, may hinder access to information.  Copyright owners and users are each granted certain rights under the Copyright Act.  In the coming weeks, we will discuss owner’s rights and user’s rights.  During this discussion, it is important to recall that the Copyright Act is a balancing act.

The Law Society of Saskatchewan Library has excellent copyright law resources from leading copyright lawyers and scholars:

If you are interested in any of these items, please feel free to contact the library at or (306) 569-8020.




CanLII. (2002). Théberge v. Galerie d’Art du Petit Champlain inc. Retrieved from

CanLII. (2004). Law Society of Upper Canada v. CCH Canadian Limited. Retrieved from

Geist, M. (2010). From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda. Toronto: Irwin Law.

Justice Canada. (2014). Copyright Act (R.S.C., 1985, c. C-42). Retrieved from

Kilpatrick, A. (2012). Access Copyright: What does it mean for Western? A Librarian’s Guide. Retrieved from

Kilpatrick, A. & Harrington, M. (2013). Copyright and Canadian Academic Libraries. Retrieved from

Murray, L.J. & Trosow, S.E. (2013). Canadian Copyright: A Citizen’s Guide. 2nd ed. Toronto: Between the Lines.

Trosow, S. (2010). Bill C32 and the Access Copyright Tariff: Double Trouble for Higher Education. Retrieved from

Trosow, S. (2009). The Copyright Debate: Finding the Right Balance for Teaching, Research, and Cultural Expression. Retrieved from




This Week in Legal History

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By Jenneth Hogan

May 20, 1980
Mistake of Fact

Wrapping up on May 20, 1980,  R. v. Pappajohn establishes the common law defence of “mistake of fact” in sexual assault cases allowing the accused a defence if he mistakenly concludes that his victim is consenting to the assault.

From CanLII:

The appellant listed his house for sale with the real estate firm with which the complainant, a real estate saleswoman, was associated. After an appointment at a downtown restaurant for lunch to discuss the house sale, during which lunch a good deal of liquor was consumed by both parties, they went to the appellant’s house, the one which was listed for sale. There, the complainant contended, she was raped over her protests and strug­gles, while the appellant claims he had an amorous interlude involving no more than a bit of coy objection on her part and several acts of intercourse with her consent. Whatever occurred in the house, the complai­nant eventually ran out of the house naked with a man’s bow tie around her neck and her hands tightly tied behind her back with a bathrobe sash. She was in an upset state and exhibited great fear and emotional stress.

When the defence closed its case and before the trial judge commenced his charge, the jury was excluded while counsel for the appellant argued that the trial judge should put the defence of mistake of fact to the jury, i.e. that the judge tell the jury that if the appellant entertained an honest though mistaken belief that the complainant was consenting to the acts of intercourse as they occurred, the necessary mens rea would not be present, and the appellant would be entitled to an acquittal. The trial judge refused to accede to the request and the appellant was eventually convicted of the rape of the complainant. The conviction was affirmed in the Court of Appeal with one dissent, upon the fact that the trial judge failed to put to the jury the defence of mistake of fact, the majority adopting the view that the issue emerging from the evidence was a simple one of consent or no consent.

Held (Dickson and Estey JJ. dissenting): The appeal should be dismissed.

Per Martland, Pigeon, Beetz, McIntyre and Chouinard JJ.: It is well established that the trial judge must put before the jury any defences which may be open to the accused upon the evidence whether raised by the accused’s counsel or not. This, however, does not mean that the trial judge becomes bound to put every defence suggested to him by counsel. There must be in the evidence some basis upon which the defence can rest and the judge must consider, assuming that the evidence relied upon by the accused to support a defence is true, whether that evidence is sufficient to justify the putting of the defence. The test to be applied is that there must be in the record some evidence which would convey a sense of reality in the submission. In this case, to convey such a sense of reality, there must be some evidence which if believed’ would support the existence of a mistaken but honest belief that the complainant was in fact consenting to the acts of .intercourse. Here, the complainant’s version excludes consent and any possible mistaken belief in consent, while the appellant’s version speaks of actual consent and no suggestion of any mistaken belief could arise, and in this situation the only realistic issue which can arise is the simple issue of consent or no consent. To require the putting of the alternative defence of mistaken belief in consent, the evidence must appear from or be supported by sources other than the appellant in order to give it any air of reality.

The aftermath of this case was that the federal government later amended the criminal offence to require that the jury should “consider the presence or absence of reasonable grounds for the belief”. Sec. 265(4).

The Supreme Court clarified the law in R. v. Sansregret where it excluded the defense of mistake of fact where the defendant is found to be “wilfully blind”.

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May 21, 1986
Keeping Our Planet Clean

Millionaire CEO Keith Alexander sentenced to one year in jail by a Ontario Supreme Court, after repeatedly being fined, for dumping toxic contaminants into Toronto sewers; president of Jetco Manufacturing Ltd. the First corporate executive sent to jail for pollution-related offenses. CBC claims “his competitors support the ruling because paying fines shouldn’t be just another way of doing business”.

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