[d@DCC] Limitations of R. v. Stewart

[Jason Young]

Part II of my response to http://www.digital-copyright.ca/discuss/1873

At 10:42 -0400 03.05.13, Russell McOrmond wrote:
>  > Thus, if I digitize a Monet, I cannot then claim copyright in that
>>  reproduction as separate from Monet's rights which, in any case, have
>>  expired, see R. v. Stewart, [1988] 1 S.C.R. 961 at para. 40
>  > http://www.canlii.org/ca/cas/scc/1988/1988scc43.html .
>
>   I like how this gave a legal answer to the "theft is theft" rhetoric:
>
>"This case does not deal with the theft of a list or any other tangible
>object containing confidential information, but with the theft of
>confidential information per se, a pure intangible. "
>...
>"Information per se cannot be the subject of a taking."
>...
>"The unauthorized reproduction of copyrighted information, like the
>employer's list, constitutes an infringement of copyright under s. 17 of
>the Copyright Act but does not constitute theft under the criminal law.
>The rights provided in the Copyright Act cannot be taken or converted as
>their owner would never suffer deprivation."
>
>I believe we need to have stronger confidentiality and privacy laws, not
>try to put the round-peg of privacy into the square-hole of copyright.
>Reading this ruling is extremely frustrating as the wrong law is being
>used to do something that society may even agree is valid.

The court was only dealing with the charges under the Criminal Code 
and, as such, this is a narrow decision. The court declined to find 
that confidential information could be the subject of theft under the 
definition in s. 283(1) [now s. 322(1)] of the Criminal Code because 
it was not property. It did entertain the argument that you could 
have a proprietary interest in confidential information, but 
recognized that if it found that confidential information was 
property in criminal law, there could be broad and unsavory 
implications. They note, for example, that if after having memorized 
confidential information, a"person is incapable of erasing it from 
his memory, he could, one might argue, be charged with an offence 
under s. 312 (possession of stolen property) of the Criminal Code for 
each day that he is unable to forget the information." Obviously, 
this would be ludicrous.

The decision does not mean that the collection, use or disclosure of 
confidential (or personal) information could not be illegal in other 
contexts, such as under privacy law, or in other fact situations, 
i.e. the state was implicated in the collection, use or disclosure; 
there was a fiduciary duty between the data collector and subject, 
such as between a doctor and a patient.
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