Judge Richard Posner, one of the best regarded judges in the world, has a blog post in which he expresses concern about the potential for patent and copyright law to restrict competition and creativity. On patents, Posner notes:
When patent protection provides an inventor with more insulation from competition than he needed to have an adequate incentive to make the invention, the result is to increase market prices above efficient levels, causing distortions in the allocation of resources
He continues by citing the software industry as an example of the dangers of excessive patent protection. On copyright, he expresses doubt about the social benefit of copyright for any academic work other than textbooks, noting that they are a by-product of academic research that would be produced with or without copyright protection. His two major concerns involve the term of copyright (which is longer in the U.S. than in Canada but could be extended under the TPP) and narrow interpretations of fair use:
The next most serious problem is the courts’ narrow interpretation of “fair use.” The fair use defense to copyright infringement permits the copying of short excerpts from a copyrighted work without a license, since the transaction costs of negotiating a license for a short excerpt would tend to exceed the value of the license. The problem is that the boundaries of fair use are ill defined, and copyright owners try to narrow them as much as possible, insisting for example that even minute excerpts from a film cannot be reproduced without a license. Intellectual creativity in fact if not in legend is rarely a matter of creation ex nihilo; it is much more often incremental improvement on existing, often copyrighted, work, so that a narrow interpretation of fair use can have very damaging effects on creativity. This is not widely recognized.
Canada actually fares well on both of these issues – for now. Canadian copyright term is shorter than the U.S. and the Supreme Court of Canada has emphasized the need for a broad interpretation of fair dealing. The danger lies in the continuing pressures to extend our term and to narrowly interpret the Court.