Copyright the Canadian Way

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.


  1. pat donovan says:

    acta, etc
    current copyright is going to be the BIGGEST land grab in history;
    not by color of right, criminalizing the populance and will straighjacket development.

    like CRTC efforts, it’ll end up being the worst service at highest price and obsolete.

    nicely conservative, eh?

  2. Pat said…
    “criminalizing the populance and will straighjacket development.”

    There is an ENORMOUS amount of money to be made with “John Doe” law suits…like in the US and UK. This is the “new” cash cow. Unfortunately, they will never learn that suing that their customers is not the most effectively long term plan. Alienating your customer base is not an effective way to foster respect and can only result in furher lost sales. Luckily, in Canada, we have a small enough population to make this less lucrative and likely short lived. If the CRIA wants to see a drop in sales, suing their customers is a sure-fire way to put the final nail in their casket.

    As always, rights holders must work with what the customer desires. Shoving what the customer does not want down their throat will not make it any more acceptable. Entrenching out-of-date business models in law is the true crime with C-32. Where would we be if the candle, the typewriter, the telegraph, the vacuum tube, or any other obsolite technology and/or business model received government protection to the exclusion of progress. Where would we be if an idea or theory were so protected by law that simply studying it or contradicting becomes illegal or requires special licensing. Scientific progress would slow to a crawl. Would the world still be square? Would it still be the center of the universe?

    Well, we would wouldn’t be here on this board discussing it.

  3. The Canadian Way
    It doesn’t make any sense to encourage creativity by making personal copying illegal. The internet and the various databases of music, film and all arts, have enriched us immeasureably. How many of us have come to love our media again in ways that we could never have afforded if we paid for every title?

    This is NOT theft, it is just the benefit of this new technology. A Canadian solution would be to find another way to reward creativity, without “throwing out the baby with the bath water.”

  4. @IamME: “Unfortunately, they will never learn that suing that their customers is not the most effectively long term plan.” Its got nothing to do with a long term plan. In many cases today it is about short term bang for the buck. The half-life of the CEO of a publicly traded company is, what, 3 years? And they generally have financial incentives, approved by the Board of Directors on behalf of the stock owners, to make as much money in the short term as possible.

    In a publicly traded company it is about “increasing shareholder value”… this means that either the stock price goes up or the company pays dividends. Many investors are in it for the short term; they couldn’t care less about what happens to the company if they don’t own any of it. If it is good for the short term to do a number on their customers, well, by the time that the effects of this policy come home to roost, the investors will likely have unloaded the shares and the CEO will have moved on. The impact has a, to borrow phrase from Douglas Adams, a “Somebody Else’s Problem field” around it.

    The situation is different in a privately held company; there the owner tends to be there for the long term (unless they are trying to turn the company into takeover bait).

  5. Got any cotton?
    It is true that copyright is a complex and contentious issue, but it is also on the cusp of a paradigm shift fostered by a technological change as significant as the printing press. Interesting times calls for interesting solutions, the status quo industry is understandably not keen to see change that takes control out of their hands but efforts to forestall or reverse it will only falter. As mentioned, short term views are limiting long term solutions. A lack of imagination and a reluctance to take risks compounds the problem while they grease as many palms as possible to keep their stick in the fire. A few see opportunities and are working to bring about change that will mean a better deal for creators, alas they are being drowned out by the chorus of the faithful who only hear the cries of doom from the industry soothsayers.

    As more people wake up to the reality that is already here the wails may decrease in amplitude. Until then, batten the ears.

  6. Interesting ruling

    “Last year the firm was hammered by a US District Court judge, who said that Limewire users “commit a substantial amount of copyright infringement” and that the software “enables infringement for the success of its business”. ”

    Lets see what else satisfy the two criteria and should be shut down / banned:

    – photocopiers & scanners
    – CD burners
    – THE INTERNET!!!!!

    May I remind the yankees that gun owners commit a substantial amount of crimes and that “the industry” “enables violent criminality for the success of its business”. ????


  7. In other news:
    …the US corporation have the best laws money can buy:

    Do we really need to copy them?