Copyright Infringement without Copying - Reflections on the Thèberge Case
Bibliographic record
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 Theberge 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 Theberge 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.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.025 | 0.042 |
| Meta-epidemiology (narrow) | 0.001 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.002 |
| Bibliometrics | 0.003 | 0.002 |
| Science and technology studies | 0.024 | 0.058 |
| Scholarly communication | 0.024 | 0.026 |
| Open science | 0.004 | 0.016 |
| Research integrity | 0.035 | 0.025 |
| Insufficient payload (model declined to judge) | 0.008 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".