Canadian Digital Copyright's Second Decade: What's at Stake

For the first time in some twenty years, Canada’s copyright law framework is set for the foreseeable future. Previous attempts (in 2005, 2008, and 2010) to update the country’s copyright legislation for contemporary realities were stalled or aborted due to the problematics of successive minority governments during the mid-2000s. After attaining a parliamentary majority in 2011, the governing Conservative Party’s Copyright Modernization Act (Bill C-11) received Royal Assent on 29 June 2012. This followed a series of Supreme Court of Canada (SCC) copyright decisions between 2002 and 2012, which together form the basis of Canada’s copyright framework moving forward. However, with mandated five-year reviews of copyright law included in Section 58 of Bill-C11 (see s 92 of the Copyright Act), debates surrounding the current and future shape of Canada’s copyright regime are destined to continue in the coming years.

 

The recent Congress of the Humanities and Social Sciences 2014 (Congress 2014) and the Canadian Political Science Association 2014 Annual Conference (CPSA 2014) highlighted some of the issues that will likely occupy the debates between interested stakeholders. As part of Congress 2014, three debates were held as part of the “Copyright and the Modern Academic: Congress 2014 Debate Series”, which looked at how copyright law works in academic and social contexts. At the CPSA 2014, the “Canadian Digital Copyright’s Second Decade: What’s at Stake” (p. 66) analyzed the recent past and coming future of Canadian copyright law.

 

This panel included Dr. Blayne Haggart (Assistant Professor in Political Science at Brock University), Tim Ribaric (Librarian, James A. Gibson Library at Brock University), and Dr. Martin Zeilinger (PhD, University of Toronto), who presented different perspectives on the future of copyright generally, and specifically in Canada. Alternative and opposing responses to the historic and contemporary copyright environment were also presented. [Ed. Note: the author of this post served as the discussant on this panel]

 

In his paper, which draws upon research done for his book Copyfight: The Global Politics of Digital Copyright Reform, Dr. Haggart used an historical institutionalist perspective to describe the processes and activism behind recent reforms to Canadian copyright law. His paper demonstrates how external shocks – emanating from technological changes that foreground processes of relational creativity and attendant public interest and advocacy – disrupted the pre-2000 status quo of Canadian copyright law. In particular, he argues that the Fair Copyright for Canada (FCFC) Facebook page and other actors affected the ideas and institutions of Canadian copyright and worked alongside the SCC’s (re)assertion of “user’s rights” to make them a central component of Canadian copyright law. These ideas were eventually taken up by the Copyright Modernization Act.

 

Mr. Ribaric’s paper on the challenges facing academic librarians in the current digital and copyright environment demonstrated some of the problems associated with relying on fair dealing exceptions as the primary means for accessing copyrighted materials for purposes that are designed to more explicitly benefit the public good. Mr. Ribaric describes a “chilling effect”, which occurs due to the uncertainty associated with the vagaries of copyright law and permissible uses as well as the fear of being the subject of costly litigation—such as that now facing York University. Mr. Ribaric’s paper also highlighted one of the less obvious trends occurring as technological, economic, legal, social, political, and cultural ideas as well as institutions change. During negotiations with university libraries, Mr. Ribaric discusses how Access Copyright requested that the institutions “monitor and determine (through electronic eavesdropping) if any copyright use transgressions were occurring (Trosow, et al, 2012)”. This represents an instance where the ‘responsibilities’ and needs of private and corporate actors are downloaded onto public institutions with limited resources—as well as mandates that are opposed to such actions.

 

The concerns and challenges faced by academic librarians echoes the sentiments and common values of the “non-commercial artistic digital communities” that Zeilinger describes in his paper—as well as in his edited volume Dynamic Fair Dealing: Creating Canadian Culture Online, which he edited with Rosemary Coombe and Darren Wershler. Zeilinger advances a “moral economy” theoretical framework as a means of understanding the discourses and values of digital communities with respect to copyright debates. Zeilinger’s discussion of digital communities – as moral economies – recognizes the existence of pluralistic needs and interests of various groups, communities, and users. For example, digital artists often use existing materials for creative and non-commercial purposes. The so-called YouTube exception added by the Copyright Modernization Act can then be seen as an attempt to give legal protection to such actions.

 

However, relying on a “user rights” framework dependent on “fair dealing” exceptions helps perpetuate a dominant creator versus user discourse, which undermines public and private interactions that are not necessarily always opposed, and which copyright law has historically sought to calibrate. The citizens of Canada have pluralistic interests and values that transcend the mere access to and use of informational goods, which should be accounted for moving forward. This CPSA 2014 panel demonstrates that doing so will require sustained attention and debate in the coming years.

 

Joseph F. Turcotte is an IPilogue Editor, a PhD Candidate and SSHRC Doctoral Fellow in the Communication & Culture Program (Politics & Policy) at York University, and a Nathanson Graduate Fellow at the Jack & Mae Nathanson Centre on Transnational Human Rights, Crime and Security at Osgoode Hall Law School.