My topic is the valuation of copyright. Valuation of any sort of intellectual property is a tricky subject. Somebody invents a better mouse trap and wants to sell the invention. He may get a patent for it. How does he know what to ask for it? An idea for a better mouse trap is not like a piece of land or a house. It is often hard enough to value that. We just bought a condo in Vancouver. The prices are insane. I certainly did not think that the condo was worth what I had to pay for it. But that was the market and I paid. But what is an idea worth? Or a book or a song? J.K. Rowling had difficulty finding anybody to buy her first Harry Potter book. The publishers she approached must have thought its value was close to zero. She found one who thought it was worth taking a plunge on, but I bet even that publisher did not know what a runaway hit the book would be. We now know the publishers that turned Ms. Rowling away were a billion or so dollars out, and the successful publisher who took her on was probably not much less out.
These examples show just one of the difficulties in valuing intellectual property. The CBC v. SODRAC [SODRAC] [1] case in the Supreme Court dealt with a much more technical aspect of intellectual property valuation – but that did not make the decision any easier and the differences of opinion in the case any less difficult to justify.
Before we even got to the mechanics of valuation in that case, we had to confirm that there was something to value. Copyright is usually accepted as a property right, and the exclusive rights it gives its owners in section 3(1) of the Copyright Act [the Act] [2] – rights to stop others doing things such as copying or broadcasting – are each treated as property rights in themselves that can be sold or licensed individually. So we had to find out whether one of those rights in section 3(1) was implicated. If it was not, there was nothing to value. It is only when one of those rights the Act grants to an owner is engaged that we get to any question of valuation – how much is it worth?
Featured here are the first few paragraphs of the Honourable Mr. Marshall Rothstein’s article, “The Value of Copyright”. The full article is available in the latest issue of the Intellectual Property Journal, volume 28(3), pp. 295-302.
A version of this article was delivered by the Honourable Mr. Marshall Rothstein at Osgoode Hall Law School, Toronto, on February 25, 2016 during his keynote speech for the Unpack SODRAC: Technological Change and Copyright Tariffs after CBC v SODRAC (SCC 2015) Symposium.
[1] Canadian Broadcasting Corp. v. SODRAC 2003 Inc., [2015] S.C.J. No. 57, 392 D.L.R. (4th) 1.
