Abraham “Bram” Stoker (1847–1912) was an Irish author, best known for writing the 1897 Gothic horror novel Dracula. Stoker drew extensively from Transylvanian folklore and history for the novel, and he gave the title character the name Dracula because he thought it meant “devil” in Romanian.

The novel was published in the United Kingdom in 1897 by Archibald Constable and Company, and in the United States in 1899 by Doubleday & McClure. To secure copyright, US law at the time required the author to deposit two copies of a book with the Copyright Office in the Library of Congress. However, in 1930, when Universal Studios purchased the movie rights, it was discovered that Stoker and Doubleday had deposited only one copy, which effectively meant that the book was in the public domain in the US. The novel and its title character have become mainstays of popular culture, and Stoker’s great grand-nephew Dacre Stoker has suggested that Stoker’s failure to comply with US copyright law contributed to the novel’s enduring status, since US writers and producers did not need to pay a licence fee to use the character. That may have been so in the US, but the opposite was the case in Europe.…

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In a previous post, I examined the judgment of Roy J in the the Federal Court of Canada in 1395804 Ontario Ltd (Blacklock’s Reporter) v Canada (Attorney General) 2024 FC 829 (CanLII) (31 May 2024) [Blacklock’s Reporter], effectively holding that technological protection measures cannot defeat users seeking to rely on the exceptions provided in the copyright legislation. And I put it in the context of sections 370, 374 and 376 of the Copyright and Related Rights Act, 2000 (hereafter: CRRA), and of section 377 CRRA (as inserted by section 38 of the Copyright and Other Intellectual Property Law Provisions Act 2019.

There have been subsequent relevant developments, in Canada and the US, and I want to look at those developments in this post. In particular, the US development – inevitably – adds the First Amendment to the mix, which in turn raises questions about whether there are similar constitutional issues in Canada and Ireland.

First, Canada. Barry Sookman argues that the case is riddled with mistakes, that many of its findings are open to significant doubt, and that it cries out for appellate review. In reply, Howard Knoff, argues that Sookman’s arguments are against a straw man.…

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