A Pragmatic Approach to Copyright Policy: My 3L Year with Canadian Heritage (IP Intensive Reflection)

Over the past three months, I have been placed at the Department of Canadian Heritage with the Government of Canada. Prior to law school, I worked as a project coordinator for six years with international development organizations abroad. Not only did I enjoy returning to a work environment where there was a spirit of comradery and positive support, but I also thoroughly enjoyed exploring copyright law beyond the classroom. This piece will share my reflections on how Canadian policymakers and stakeholders think of copyright law, and where we can perhaps learn to listen.

After discovering an interest in copyright law during my 2L year, I was fortunate enough to experience how policy makers practically apply the case law to everyday situations that impact stakeholder’s livelihoods and the broader Canadian cultural sector. I learned that, while Copyright policy makers have a difficult job balancing the interest of stakeholders,  stakeholder interests often overlap despite the breadth and specificity of the Copyright Act.

Canadian Copyright Law and Policy has a Robust Scope

While we may think of copyright in its most basic terms textbooks to songs on the radio, it is important to remember that the Copyright Act also presents a legislative framework for a complex management system. As our society becomes more dependent on technology and the global marketplace is more focused on Artificial Intelligence (AI), gaps in the Act become more apparent. All parties agree that Canada requires technologically neutral legislation to proactively address these challenges. Our industries, from scientific research institutions, to tech-start-ups to creative artists, must have access to and understand an Act that is not only compliant with our international trading obligations, but also competitive on an international scale.

Re- Thinking Copyright Stakeholders in 2020

In law school, some classes encourage students to think of copyright using the Theberge balance: a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator. Or, more accurately, to prevent someone other than the creator from appropriating whatever benefits may be generated (at para 30). Justice Binnie held that the proper balance amongst these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature. In other words, it would be insufficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them (at para 21). Using this balance as a justification, different lobbying interests have emerged. A dichotomy of users versus authors has emerged.

Canadian Heritage allowed me to explore new perspectives. I gained an appreciation for the work of Canadian authors and content creators and how some artists have experienced a decline in the digital era. These case studies emphasized why this dichotomy is false because creators or authors are users. For example, Content generators develop original works using inspiration from previously published works. Independent journalists may be dependent on networks such as Facebook to research their pieces, and then subsequently publish and share their finished articles on the platform to secure future works. However, these dissemination practices may offend their publishers’ (or owner’s) copyrights in the work, further diminishing their incomes in this digital age. Copyright policy, therefore, must re-balance between the tech giants, the “Super users” who have a monopoly on their platform users’ data and the corporate copyright owners, and the researcher, AI developer or Canadian public who require reliable news and a civil space to discuss ideas. These groups are particularly critical during the age of a pandemic. These users, in turn, become authors and creators who create dynamic content and innovation as a part of a globalized marketplace.

Written by Natalie Chodoriwsky, JD Candidate 2021, enrolled in Professors D’Agostino and Vaver 2020/2021 IP & Technology Law Intensive Program at Osgoode Hall Law School. As part of the course requirements, students were asked to write a reflective blog on their internship experience.

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