Théberge and its Impact on E-book Readers

With the Christmas shopping season in full swing, I thought I would take today to consider how a fairly new technological trend in e-book readers might be impacted by the Supreme Court of Canada’s (“SCC”) decision in Théberge v Galerie d’Art du Petit Champlain inc.[2002] 2 SCR 336 [Théberge].

On November 19, released their wireless e-book reader (called the ‘Kindle’) that uses e-ink technology and allows users to purchase books wirelessly over Sprint’s cellular network in the United States. Though the product lacks the immaculate design of some other consumer electronics (read: the iPhone), it nevertheless hit the spot for many as the product sold out in a mere 5.5 hours.

As I began my ritual of packing my mounds of textbooks into my backpack to head off to the library in preparation for upcoming exams, I would have to admit that the thought of just throwing in a device that is a mere 10.3 ounces into my bag would be a real treat. Moreover, how nice would it be if I did not have to stand in the horrendous Osgoode materials distribution lineup come January, and instead be able to pull my books down from the internet via the cellular network on my Kindle.

But then it dawned on me that if that were the case, I would likely never be able to sell my textbooks after I used them. This is because the Kindle uses Digital Rights Management (“DRM”) technologies to ensure that a purchaser of an e-book will not further duplicate it. And therein lies the concern of the device.

In copyright law, the rights of the author in the physical embodiment of the creative expression are said to be exhausted after the first sale of the work. In the US, this is known as the first-sale doctrine. This doctrine of exhaustion is a well-recognized doctrine in copyright law, and is fundamental to the balance between author’s rights and users’ rights. Indeed, the SCC in Théberge stated the following at paras. 31-32,

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. Once an authorized copy of a work is sold to a member of the public, it is generally for the purchaser, not the author, to determine what happens to it.

Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization. (Italics mine).

If I have purchased a paper book, I can read it, mark it up, tear out a page, or resell it. Moral rights aside, I can pretty much do anything I want short of making an additional copy. This is the very reason why publishers often release new editions of textbooks even though there are seemingly very few changes to the text. Because authors have no additional claims to subsequent sales of their works, a new edition effectively stifles the used-book market because students are encouraged to buy the latest edition instead of the deluge of older editions on the used-book market.

This would seem to be the hidden agenda (or at least the side effect) of the Kindle. No longer will you be able to pass your copy of the latest Harry Potter novel to your best friend after you are done with it. Chances are that if you have a Kindle, you will not part with your device, and your friends will have to buy their own copies for their own Kindles. From an intellectual property perspective, one begins to wonder whether such a device upsets the balance inherent in copyright law, and in fact, does end up “creat[ing] practical obstacles to proper utilization.”

Though Amazon’s Kindle has not been released in Canada as of yet, it nevertheless seems that one might want to think twice before plunking down the money for an e-book reader that limits what you can do with a book after you read it.

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