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I. COPYRIGHT: CASES AND MATERIALS
literary merit. Many works that are today held in high regard have been adjudged obscene in
previous eras. English courts of the nineteenth century found the works of Byron, Southey and
Shelley to be immoral. ...
We can only conclude that we must read the facially all-inclusive 1909 copyright statute as
containing no explicit or implicit bar to the copyrighting of obscene materials, and as therefore
providing for the copyright of all creative works, obscene or non-obscene, that otherwise meet
the requirements of the Copyright Act.
Aldrich v. One Stop Video Ltd, (1987) 39 D.L.R. 4th 362 (Canada: British
Columbia Supreme Court)
MR JUSTICE DAVIES:
In my view, art. 17 of the Berne Convention does not encompass denial of copyright to certain
works based on their contents. Article 2 bis(1) of the Rome [1928 Revision of the Berne]
Convention clearly permits such a denial of certain works based on the context of their
presentation. Article 17 deals with the government’s right “to permit, to control or to prohibit ...
the circulation, representation or exhibition” of works. It is clearly broad enough to include
limitations based on content; however, copyright is not the grant of any right to circulate,
represent or exhibit. ... [C]opyright depend[s] on the right to sell, not vice versa. It is this
principle, that a government may deny the right to circulate, represent or exhibit obscenity, which
is affirmed by art. 17.
If it could be said that art. 17 permitted denial of copyright to obscene works, then that right is
given to the “governments of the member countries”. If a government intends to exercise this
right, it is to do so by “domestic legislation or police”. In Canada this right has been exercised
in enacting criminal law offences, customs legislation and provincial films and videotape
classification systems. ...
Copyright allows authors to protect their creations. In this sense, past common law copyright and
past statutory copyright have recognized the value to society of encouraging creativity by
permitting creators to keep the benefit, particularly the economic benefit, of their work. The
need for protection beyond national boundaries has been recognized by Canada’s adherence to
the Berne Convention on Copyright since 1924 and to the Universal Convention on Copyright
since 1952. ... In my view, neither of these international agreements contemplates content-based
denials of copyright in obscenity.
I cannot agree that, as obscenity is dealt with by the Criminal Code, the common law is barred
from a role in its control. Criminal law deals with specific forms of sanctions against persons
who contravene laws established for the protection of society, its individual members and its
values. The common law’s support of moral values is not confined to the enforcement of
criminal sanctions. Criminal law and common law can and may complement each other. ...
Given the public policy considerations of encouragement of creativity, international protection
copyright, and the flexibility in moral values at a time of increased attack on the values which
do exist, and given the unresolved debate on whether or not refusal of protection is in fact the
most effective means by which courts may support these moral values, I have concluded that I
ought not to apply principles of common law and equity to attempt to restrain the dissemination
of obscenity through a refusal of copyright or copyright protection. However, I have also
concluded that this should not prevent me from applying principles relating generally to the
enforcement of rights. ...
