Mixing, copyright and privacy

[Jason Young]

>The "re-mix" is, I believe, a grey area. I think it *should* be fair dealing,
>but I don't believe that the law currently says that it is. (Perhaps one of
>the resident legal people can comment ?). For that reason, you might want to
>omit this example.

Section 80(1) of the Act provides that copying "all or any 
substantial part of..." a work is not infringement so long as it is 
for private use. You can mix, rip, burn, or play frisbee with your 
CDs as long as it is for your own use. If you mix CDs for rental, 
sale, distribution and the like, then you would be engaging in 
infringing conduct.

>My position is not that such lawas are not invasion of property
>rights (not protected by the Charter of Rights), but an invasion of
>privacy.

The Charter only deals with government action (or inaction), 
therefore unless the rights management scheme that is collecting your 
personal information or otherwise telling you how you can and cannot 
dispose of your property is run by a public body, then the Charter 
will not apply. As an aside, the Internet Treaties prohibit 
contracting parties from devising or implementing rights management 
schemes (see WCT Art. 12 Agreed Statement and WPPT Art. 19 Agreed 
Statement), which although it sounds logical on its face, I think is 
one of the main flaws in the treaties. I discuss that in my comments, 
which I've finally revised and stuck up on the web here 
http://www.lexinformatica.org/copyright/ along with a few other 
copyright-related items.

It would likely not be a tort either, which is what the typically 
files 'invasion of privacy' under. There are four traditionally 
recognized aspects to the tort invasion of privacy: 1) intrusion upon 
one's physical solitude; 2) public disclosure of private facts; 3) 
publicity which places one in a false light; and, 4) the 
misappropriation of one's likeness for the benefit of another. None 
of them would seem to apply in this type of scenario. The latter was 
the tort claimed under the Quebec Civil Code in Aubry v. Editions 
Vice-Versa, which I think Russell mentioned here several weeks ago 
about the girl sitting on the steps of a public building in Montreal 
who had her photo taken without permission by a photographer who 
subsequently published it in a magazine.

This isn't to say that it isn't an invasion of privacy in a more 
general sense and, in fact, creating a rights management scheme which 
collected, used or disclosed your personal information without your 
(prior) informed consent, would be in contravention to the recently 
enacted Personal Information Protection and Electronic Documents Act 
(PIPEDA). The next question is: would a shrinkwrap licence on a CD 
qualify as informed consent? Engaging in a little rampant speculation 
here, I would tend to think it would, if only because the purpose for 
which the personal information is being collected is so innocuous. In 
another context - say digital cable - it might not be.
-- 

Jason Young
http://www.lexinformatica.org
http://www.privaterra.org
830F AE11 91C5 946E CF80  684C F13C 79C3 46E1 1518
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