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Copyright the Canadian Way

By Michael Geist

This week's Hill Times features an op-ed by Sara Bannerman that explores the Canadian history of fighting for independent copyright policies.  Bannerman notes that Bill C-32 "is more like a Canadian version of the American Digital Millennium Copyright Act than a made-in-Canada solution to copyright in the digital age." Bannerman's piece is adapted from her chapter in From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda and is one of several pieces that provide much-needed historical context to the current round of reforms.

Bannerman's article notes that virtually from the moment of confederation, Canada has grappled with contentious copyright reform issues.  Reform efforts have invariably come as a response to international pressures, with the United Kingdom exerting significant influence over the early attempts to craft a genuine made-in-Canada copyright law.  Bannerman also places the spotlight on the challenges Canada has faced with international copyright treaties, with attitudes that have ranged from outright rejection to strong support.

In light of the international pressures and inconsistent responses to international treaties, Bannerman argues that Canadian copyright reform has historically been characterized by three elements that can be seen in the current round of reforms: slow progress, a minimalist approach, and made-in-Canada approaches that endeavour to respond to domestic Canadian demands and meet the technical requirements of international treaties.

University of Windsor law professor Myra Tawfik also provides historical context in her article.  Tawfik delves deeper into the historical purposes behind copyright law, particularly the importance of enlightenment and education.  While most historical analysis has emphasized the importance of publishers (in early copyright laws) and authors (in the 20th century), Tawfik notes that it is education and public access that has consistently influenced copyright norms.  Indeed, while publishers are often viewed as the "winners" in the early copyright laws, publisher rights faced significant limitations with the law ensuring rights of access that established important limits on copyrights.

Interestingly, Tawfik observes that prioritizing knowledge dissemination was a foundational objective in both the United Kingdom and France.  Although France is often associated with author rights, French parliamentarians grappled with concerns that creator rights might interfere with the public interest in learning and education.  Having identified the importance of education within the copyright construct, Tawfik then travels back to the 1830s in Lower Canada, where the same priorities and concerns manifested themselves.  Given this historical context, Tawfik is sharply critical of Bill C-32's digital lock provisions, concluding that the bill has "in one simple but sweeping legislative device, entirely forsaken the educative function that has been an essential feature of the law from its inception."

Meera Nair of Simon Fraser University offers a third historical piece, one focused specifically on the history and controversies associated with fair dealing within Canadian copyright law.  Nair notes the long history behind fair dealing and the reasonableness of its evolution (particularly in light of the 2004 Supreme Court of Canada decision in CCH Canadian v. Law Society of Upper Canada).

Nair is critical of both sides of the fair dealing debate, suggesting that critics have consistently undermined fair dealing by seeking to substitute a core element of copyright law with licencing, while lamenting that the education community - an obvious beneficiary of a balanced fair dealing provision - has generally been too timid in exercising its rights.  With Bill C-32 setting the stage for another policy battle over the scope of fair dealing, Nair expresses the view that it is at a crossroads, with the very real possibility that it could ultimately become little more than a historical artifact.

Full post as published by Michael Geist on October 25, 2010 (boomark / email).