Barry Sookman has a lengthy blog today about my recent blog about Margaret Atwood’s pronouncements at the Bill C-32 Committee hearings on copyright law - and specifically fair dealing and the notion of “theft”.
Unfortunately, Barry’s incomplete analysis and the inapposite and irrelevant cases he lists omit the obvious leading Canadian case on point, which is that of R. v. Stewart,  1 S.C.R. 963 from the Supreme Court of Canada in 1988. The direct relevance of this decision to this discussion was pointed out by Prof. Ariel Katz in a comment on my blog posting above.
In this judgement, written by the late Justice (later Chief Justice) Lamer, the Court "settled the issue" and "stated unequivocally that infringement of a copyright does not amount to theft under the Code” (see below). Infringement is infringement. It is not “theft”. Only under certain extraordinary circumstances involving commercial scale activity and intent, which would virtually never arise in the educational sector, would infringement ever give rise to prosecution as an “offence” in Canada - and even then, it would not arise under the Criminal Code, which is where “theft” is dealt with. The words “theft” and “steal” do not occur in the Copyright Act. They both occur in the Criminal Code, which is where Parliament has decided that they belong.
Needless to say, the CCH decision in the Supreme Court of Canada made it very clear that:
• “User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.” and.
• “ The fair dealing exception under s. 29 is open to those who can show that their dealings with a copyrighted work were for the purpose of research or private study. “Research” must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.”
“Theft” is a very serious allegation and the word should be used with the greatest of care and caution, especially by accomplished writers and lawyers. Words matter. Bill Patry has written a wonderful book about the misuse of words and metaphors such as "theft" entitled Moral Panics.
In any case, here is a good scholarly discussion of the importance of the Stewart decision in Canadian copyright law. Although the author is writing in the context of a book on computer law, the analysis applies to all works protected by copyright, including Ms. Atwood’s literary works. This analysis confirms that unauthorized reproduction may be infringement but it is not “theft”. This analysis is, in fact, by none other than Mr. Sookman himself. This is from his book entitled “Computer, Internet, and Electronic Commerce Law”. Footnotes have been omitted and emphasis has been added.
§ 7 (3)(b)(ii) — Theft of Copyright in Computer Programs and Data
In R. v. Stewart[FN32], Cory J.A. of the Ontario Court of Appeal expressed the opinion that the compilation of information in issue was a work in which copyright subsisted, and that the copyright therein was property within the meaning of the theft provision of the Criminal Code. His opinion was followed in R. v. Wolfe[FN33], a case in which the unauthorized reproduction of artistic works was considered to constitute the offence of theft under the Code.
The opinion of Cory J.A. in Stewart had been contrary to previous opinions expressed by other judges. In Rank Film Distributors Ltd. v. Video Information Centre[FN34], a case in which it was alleged that the defendants pirated copies of films and sold unauthorized video cassettes of them, both Lord Fraser of Tullybelton and Lord Wilberforce were of the opinion that the infringement of a copyright would not constitute theft under the Theft Act 1968.[FN35] Lord Wilberforce stated unequivocally that "infringement of copyright is not theft."
In R. v. Kirkwood[FN36] Lacourciere J.A. of the Ontario Court of Appeal also doubted that infringement of copyright amounted to theft under the Code. Lamer J. of the Supreme Court of Canada settled the issue in R. v. Stewart. He stated unequivocally that infringement of a copyright does not amount to theft under the Code:
Copyright is defined as the exclusive right to produce or reproduce a work in its material form (s. 3). A mere copier of documents, be they confidential or not, does not acquire the copyright nor deprive its owner of any part thereof. No matter how many copies are made of a work, the copyright owner still possesses the sole right to reproduce or authorize the reproduction of his work. Such copying constitutes an infringement of the copyright under s. 17 [now s. 27] of the Act, but it cannot in any way be theft under the criminal law. While one can, in certain circumstances, steal a chose in action, the rights provided in the Copyright Act cannot be taken or converted as their owner would never suffer deprivation. Therefore, whether or not copyright is property, it cannot, in my opinion, be the object of theft under s. 283(1) [now s. 322] of the Code.[FN37]In view of the opinion expressed by Lamer J., the unauthorized reproduction of a computer program does not constitute theft under the Criminal Code.
B. Sookman: Computer, Internet and Electronic Commence Law; © Thomson Reuters Canada Limited, 2011