Copyright law and policy articles in latest issue of Osgoode Hall Review of Law and Policy

Adrian Scotchmer is the Editor-in-Chief of the Osgoode Hall Review of Law and Policy.

The latest issue of the Osgoode Hall Review of Law and Policy, released November 24, 2008, may be of interest to readers of IP Osgoode as it contains three papers regarding copyright law.

Recent debate with respect to copyright law has assumed a noticeably public character. Professor Michael Geist, Professor Lawrence Lessig, and even the Songwriters Association of Canada (SAC) are to be commended for using contemporary media to engage the general public in the debate about the appropriate scope and degree of enforcement of copyright, especially where the complexity of such issues might otherwise have prevented active public involvement. In particular, Professor Lawrence Lessig maintains a blog, Michael Geist makes use of a blog, a newspaper column, and a Facebook group, while the SAC advocates through its website. However, the potential danger with this approach is that effective popular writing may require that one oversimplify complex matters, eschew nuance and engage in hyperbole.  A more rigorous, properly footnoted and methodological approach may be more accurate, albeit less appealing to the general public.  In this issue, the Review aims to move the discourse about copyright matters from general public engagement to academic debate.

Barry Sookman’s first piece attempts to rectify a deficit in the popular attention afforded to Canada’s international treaty obligations related to copyright. Mr. Sookman assesses the Songwriters Association of Canada’s (SAC) proposal to monetize file sharing in Canada in light of Canada’s international treaty obligations concerning copyright and concludes that those obligations preclude the adoption of proposals like those of the SAC.

Mr. Sookman’s concerns about the impoverishment of the quality of debate that can occur when that debate is directed through public channels is further evidenced in his second piece in which he critiques Professor Geist’s public assessment of Bill C-61 as articulated in his Facebook group “Facebook Fair for Copyright of Canada” and his blog. Given that Parliament was dissolved before this Bill could be passed, it is not currently before Parliament. However, as the Conservatives have retained a minority government, the debate remains topical, as the Bill is likely to be re-introduced. Mr. Sookman argues that Mr. Geist’s criticism of the Bill has been over-zealous as he has made factually inaccurate and exaggerated claims. If so, whether the forum in which he published his views provided a medium through which he could communicate his zeal, or whether the zeal that was communicated was a necessary consequence of publishing in the forum that he did, is a matter left to the reader to decide.

Catherine Lovrics reviews Lawrence Lessig’s most recent foray into public discourse in his latest book Remix: Making Art and Commerce Thrive in the Hybrid Economy (released October 21, 2008). Like Mr. Sookman, Ms. Lovrics finds that the viability of some of Mr. Lessig’s suggested reforms is questionable under existing international obligations with respect to copyright. However, as Ms. Lovrics notes, Mr. Lessig’s project is more concerned with how the law ought to be than what it is, and so he imagines a fundamental restructuring of the copyright regime; one that would likely require changes to the international regulatory framework and antecedent to that, a greater degree of consensus on the role that copyright ought to play in society. In particular, Lessig worries about how current copyright laws criminalize the ordinary behavior of youth and finds this to be inherently troubling as well as practically unfortunate by virtue of decreasing the scope for the successful legal creation of ‘remixed’ works.

All three pieces deal with the proper role of copyright in our society and with the potential of available enforcement mechanisms. All of the authors, and those they are responding to, agree that copyright reform is necessary, but could not diverge more in their suggested remedies. Ultimately, the dispute at its core may be more philosophical than legal in nature.

  1. Expecting a blog posting to be as well researched and precise as an academic paper appears to miss the “point.”
    Assuming (without verification) that Mr. Sookman’s criticisms are accurate, there is still a strong case to be made for the kind of advocacy that Mr. Geist provides.

    There are numerous documents, advertisements and even “research” papers released by collective-friendly sources, and many of them fail to meet the criteria that Mr. Sookman would impose on Mr. Geist. They are exercises of over-simplification and hyperbole (in fact, Canadian and US collectives have been known to make-up statistics to support their view). While Sookman’s concern that “the way in which information and arguments are presented at the site could contribute to unwarranted adverse opinions about the proposed bill and its likely effects” may be valid – he fails to recognize that many people have had this exact same concern regarding the information “pro-IP” (to grossly oversimplify) groups have released.

    And, to simplify the argument myself, sometimes fire is fought with fire: political reality is such that the general public isn’t usually interested in nuanced arguments. They want to know what is good and what is bad. Presenting subtle arguments regarding the optimal balance of copyright, when the other side is attempting to link (in the public’s mind) copyright-infringement to terrorism, may not be a winning strategy.

  2. Anonymous makes an important contribution in her comment. I do believe that effective popular communication takes a different form from academic writing given that the ordinary citizen simply does not have the time, energy or interest to engage in the technicalities of any area of public policy, be it energy policy, industrial policy, or indeed, intellectual property policy. An analysis that is nuanced is less likely to be effective. I do not believe that popular communication is necessarily worse or better than academic communication, they are simply different.

    Of course, while popular communication has numerous advantages, I suggested that there are certain potential dangers inherent in effective popular writing. As Anonymous has observed there is the possibility that public discourse can degenerate into ‘eye for an eye’ politics leading to an unfruitful ‘race to the bottom’ which can be particularly damaging to policy making, as Professor D’Agostino has observed.(1) Obviously, public policy must be based on public consent, but the idea of IPOsgoode, according to its Director, is to promote “…a much more robust public policy debate on IP and related technology law issues in Canada”(2), a thought echoed by Dean Monahan who felt that IPOsgoode would “…provide useful policy options, [that] will better ensure a balance in policy and law-making processes.”(3)

    1 Jeffrey Waugh, “Osgoode encourages balance in IP public policy debates” Law Times 19:35 (10 November 2008) 5
    2 Ibid.
    3 Ibid.

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