Copyright Law and the Law

This week Slaw is hosting a theme week on copyright and asked me to kick things off with a guest post.  I've cross-posted below but head on over to the site and join in the discussion.

While the timing of a new Canadian copyright reform bill remains a mystery, there is little doubt that lawyers will play an important role whenever the successor to Bill C-60 is unveiled.  Whether as advocates, lobbyists, counsel, or independent experts, copyright reform invariably unleashes a torrent of conferences, workshops, papers, blog postings, and opinion pieces prominently featuring members of the legal profession. 

Often missing from the process, however, is discussion about the impact of copyright law on the law.  The bar's lack of participation in assessing copyright law's impact on the legal profession is unfortunate, since the legal perspective would add an important dimension to the debate.  Indeed, it is no coincidence that arguably the most important Supreme Court of Canada copyright law in recent memory – CCH Canadian v. Law Society of Upper Canada – struck directly at the intersection between copyright and the law.

If the legal profession were to become engaged in the copyright reform process with itself as the client, what issues might it address?  I'd like to cite four as a starting point and encourage Slawyers to add to the list.  My four include:

  • Anti-circumvention measures and the availability of the law.  DRM seems likely to impact all forms of digital content, whether music, film, or books. If legal texts become locked within a DRM world supported by anti-circumvention measures, what will that mean for social justice concerns about public access to the law?  What will DRM mean for the Supreme Court's vision of a balance in copyright in which balancing access to legal materials is surely a critical policy goal?
  • Crown copyright.  I have argued elsewhere that the time has come for the government to get out of the copyright ownership business.  My colleague Elizabeth Judge has formulated a proposal that focuses specifically on crown copyright and legal materials, arguing that justice demands availability of such materials without condition.  Why isn't crown copyright on the copyright reform agenda?  Who better to push this issue than the legal profession?
  • Legal Education and the Internet. The education and the Internet issues are among the most challenging in the copyright reform package, with some education groups seeking a new Internet exception, while collectives such as Access Copyright advocating for the creation of a new Internet royalty scheme.  Legal education – both within law schools and by the provincial bar associations – surely has an interest in the outcome of this issue as lawyers and law teachers make increasing use of the Internet within their classrooms.
  • Open Access.   The legal profession's support for CanLII points to its recognition of the need to leverage the Internet and new technologies to facilitate greater access to legal materials.  While CanLII is a terrific service, it is only a start.  The legal profession could focus on the availability of secondary materials, encouraging law reviews and other legal publications to adopt open access licenses.  It could adopt the University of Ottawa Law and Technology Journal's new citation guide, which prominently features citations to freely available primary and secondary sources.  On the copyright reform front, it could build on its victory in the CCH case, by promoting a shift from fair dealing to fair use, thereby broadening the copyright balance.

Several weeks ago I delivered the annual Hart House lecture (ably live blogged by Simon Chester). I concluded by referring to 15 or 20 groups or professions, arguing that copyright was their issue.  I did not mention legal profession.  That was a mistake.

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