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I. COPYRIGHT: CASES AND MATERIALS
EXAMPLE 3:
Suppose a government agency produces a work in the course of its operation,
say, a bilingual glossary of terms in the cinematographic film business. A firm
copies the glossary and markets copies of it. When challenged, the defendant
says that it is in the public interest that government works get the widest
publicity and that the defendant is therefore furthering the plaintiff’s objects.
The agency should nevertheless be entitled to claim against the defendant for
copyright infringement, as the the following case shows:
National Film Board v. Bier, (1970) 63 C.P.R. 164 (Canada: Exchequer Court)
MR JUSTICE WALSH:
[The defendant] raises the question of public policy, quoting s. 9 of the National Film Act ...,
which reads in part as follows:
- The Board is established to initiate and promote the production and distribution of
films in the national interest and in particular
(c) to engage in research in film activity and to make available the results thereof to
persons engaged in the production of films;
He further argues that the present emphasis on bilingualism points out the need for a glossary
translating English cinematographic terms into French and vice versa.
While this may well be so, I find nothing in this argument to justify an infringement of [the
plaintiff ’s] copyright. The National Film Board produces many educational and other films
which are no doubt, in accordance with its policy, distributed for free use to schools and for other
educational purposes, but this does not say that someone could make prints of them and use them
for his own commercial purposes. There is no indication as to whether, once [the plaintiff]
completes and publishes its compilation, it is its intention to distribute it free of charge to the
public or to persons in the industry to whom it may be of assistance. This is a matter of policy
for [the plaintiff] to decide at that time ...
The fact that it has not yet completed its compilation in final form for publication, or the fact
that it may have delayed an unnecessarily long time in completing and publishing this work,
cannot certainly give [the] respondent the right to take possession of it or a substantial part of it
and publish it as his own in the guise of rendering a service to the public and promoting
bilingualism. The National Film Board has assigned five of its employees to a Committee
working on this compilation and they have, no doubt, devoted considerable time and effort to it;
and [the plaintiff] is entitled to derive the benefit from this, even if this benefit is not of a
commercial nature. It is certainly entitled to receive credit for the efforts which it has undertaken
and not be deprived of this.
EXAMPLE 4:
The most difficult question is to decide whether copyright should be enforced if
the work itself is against public policy, e.g., if its publication is forbidden under
the criminal law relating to obscenity. British courts may, according to the
Guardian Newspaperscase (above), refuse to enforce copyright in such
