Re: copyright, crime, Canada

Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> On Tue, 29 Apr 1997, Timothy Arnold-Moore <tja[_at_]mds.rmit.edu.au> wrote:
> >
> > This sounds like a useful work-around for the US but Canada and most
> > of the rest of the world have no problem with retrospective legislation
> > (unless it retrospectively makes something a crime that was not before).
>
> The U.S. is not a stranger to retroactive legislation (most notably in
> the tax code), but this particular type of legislation, which changes
> the punishment after the fact of the trial, would probably be deemed
> to be an ex post facto criminal law.

It does depend on the way the legislation was couched. My understanding was that the courts will not tolerate the retrospective creation of a new crime, but will tolerate the retrospective repeal of a crime or the retrospective alteration of the penalty for a crime (up or down).

Legislation may not actually be necessary to defeat copyright (whether defeating copyright would actually achieve the desired end is another matter). Canadian (like UK and Australian) copyright law will not protect a work which is obscene, blasphemous, fraudulent or illegal. One could argue that protecting such a work promotes illegal acts and is therefore against public interest under

 _Wright v. Tallis_ (1845) 1 CB 893;
 _British Oxygen v. Liquid Air_ [1925] Ch. 383; and
 _Barnard v.  White & Co_ [1923-28] Mac. C. C. 218.

A tort action by the relatives of the victims against the criminal would probably be a more effective way of dealing with the situation, allowing the public's thirst for gory detail to be satisfied, preventing the criminal from profiting, and giving the proceeds to those worthy of some compensation. They should wait until the book is published however to avoid discouraging the book from ever eventuating.  

Tim Arnold-Moore, LL.B. (Melb)        | Multimedia Database Systems, RMIT  |
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