Getting Copyright Right

If the government gets it right, Canada’s copyright law could make this country a leader in the global digital economy.

The federal government is just wrapping up an extensive consultation on Canada’s copyright law. Hundreds of Canadians from all walks of life have participated in online and town hall discussions, concerned about their rights as teachers, creators, librarians, entrepreneurs, or consumers – their rights, in other words, as citizens.

This is a big change from the day when copyright was of interest to a few lawyers. Copyright matters to all of us. It’s not just about transferring video games from our iphones to our ipods; copyright plays an essential role in fostering innovation and creativity. If the government gets it right, Canada’s copyright law will help position this country as a leader in the global digital economy.

As both an author of books and as Principal of Queen’s University, I will be paying great attention to the government’s response to this consultation. Our Copyright Act traces its roots back to 1710, when the British Parliament passed what it called “An Act For The Encouragement Of Learning.” It’s important to ensure copyright will continue to fulfill this goal.

A successful copyright law must balance interests. It must protect the rights of creators to benefit from their talent and labour, while meeting the reasonable expectations of consumers to make use of their purchases, the rights of citizens to engage with the world around them, and the imperative that a next generation of creators be nurtured and inspired by the ideas of those who came before them. As the Supreme Court has put it, copyright is “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.”

An essential activity of universities is to build on prior discoveries and insights. Professors pass on their research and ideas to students, colleagues, and the public so they, in turn, can innovate and create. It’s an exciting cycle. Universities, therefore, have a great interest in seeking a copyright law that recognizes the right of creators to make decisions about the reproduction of their work, but which also ensures that this work can be a springboard for the next generation.

Copyright’s key mechanism for the cycle of innovation is “fair dealing,” a provision by which copyrighted material can be used to some extent, without permission, for criticism, review, news reporting, research, and private study. Fair dealing is what permits academics to print and save journal articles for future study. It’s what allows us to quote each other. It’s what helps us show students what we’re talking about. It isn’t a free ticket, it’s the play in the system that allows it to work. Imagine if a reporter had to get permission to repeat the words of a public figure, or if a reviewer had to get permission to critique a book.

Queen’s wants any changes to the law to preserve and expand fair dealing, following the lead of recent Supreme Court decisions. Above all, the government must not allow digital locks to prevent fair dealing.

In a submission to the copyright consultation, I recently joined with the University Librarian and the presidents of our faculty association and student governments to make four points:

1. Digital locks, though they may be used to stop piracy, must not impede users’ rights.
2. Fair dealing ought to be clarified and amplified.
3. Specialized exceptions ought to be used sparingly because they likely wouldn’t be able to keep up with technological change or accommodate a range of reasonable educational practices.
4. Licensing mechanisms must not be seen as a substitute for users’ rights.

Canada, with its established tradition of defending the common good and acknowledging non-commercial social interests, has a chance to take a leadership role in a world now beginning to recognize the costs of copyright expansion over the past 10 years. If our goal is to compete in the global economy as a leader in innovation and creativity, Canada’s copyright law must strike the right balance between the rights of the talented Canadians who are our current creators and those who will follow them.