Canadian Copyright Reform—'User Rights' in the Digital ERA

Abstract

It was not until recently that copyright began to surface as an issue of general public interest, resulting in a groundswell of debate that has transformed copyright into a “hot topic”. This is in part due to the adoption of the 1996 World Intellectual Property Organization (WIPO) Internet Treaties(FN1) and the legislative reform that is expected in order for Canadian copyright laws to comply with these treaties, which have generated a broader political debate about how copyright should adapt to new communications technologies. Additional factors, however, have contributed to the recent public interest in copyright. The proliferation of digital technology and the internet, the rise of “Web 2.0” technologies, and fundamental changes in how individuals consume and produce creative works have all served to entrench questions about copyright in the public arena. Such advances have enabled near-perfect copies to be made and disseminated easily and cheaply; accordingly, this phenomenon has allowed unprecedented access to copyrighted materials, hence engendering new forms of creativity and authorship. At the same time, these developments have provided rights holders with the technological tools to monitor and control the use of their works in ways previously unimagined. As a result, the stakes surrounding the legality of everyday digital practice have become significantly higher for average citizens, who now occupy the fields of production as well as consumption, thus blurring the author/user distinction upon which much of copyright law is premised. In response, the culture industries have waged their own war on individuals who infringe copyright, fighting fire with fire through technological measures designed to prevent unauthorized copying and the use of protected works. Without copyright reform, many everyday activities that involve both production and consumption of works remain in a legal grey area, representing the new frontier of creative expression, whose borders are under constant renegotiation by users and authors alike. With copyright legislation on the brink of reform, it is time to reassess how Canadian copyright should operate in the digital era, particularly since copyright affects the average citizen now more than ever. Canada's copyright reform process has been a long and protracted one, and we have now witnessed two attempts at copyright reform die on the order paper in the last decade. The federal government has made a commitment to amending the Copyright Act to bring it in line with these recent technological and cultural shifts, but it is currently unclear which direction these amendments will take. Recent decisions from the Supreme Court of Canada indicate that copyright should be seen less as a tool to protect author or owner rights, and more as a policy-Oriented statute aimed at balancing user and owner rights in the broader public interest. Nonetheless, the most recent attempt to reform the Copyright Act, Bill C-61, does not appear to align with this judicial direction. Bill C-61, in fact, calibrates this balance far more in favour of owner rights, particularly by way of stringent anti-circumvention provisions and the failure to make fair dealing rights explicit within these provisions. This legislative direction raises concerns that user rights — and consequently a vibrant public domain — are at risk, should Canada approve a similar bill in the future. This note will explore how the digital era and the elision of the author/user divide demand a rethinking of copyright law, particularly within the context of Bill C-61. Recognizing that certain technologies, such as those aimed at preventing circumvention of data rights management (DRM) systems, may be used in service of authors at the expense of users, and that these technological tools may themselves be protected by new copyright legislation, this note concludes by suggesting that an optimal copyright balance needs to keep technological strategies enforced against end-users in check. Drawing from Jessica Litman's ideas about the declining utility of the “copy” as the central inquiry in copyright, this note will question how we, as authors and users alike, might renegotiate the boundaries of ownership and authorship in the digital age. In doing so, this note seeks to expose the incongruity between everyday practice and the potential illegality of those practices, between what is creatively possible and what can be technologically forbidden, and to challenge some of the inconsistencies that these competing forcés have produced in modern copyright law. Reprinted by permission of the publisher.