Canada is badly in need of copyright law reform. It is an issue that Canadians should care about deeply, and in which we should be engaged.
Do you download music from the Internet? Share files? Use pictures in your work presentations? Have you ever created backup copies of computer programs, or unlocked a cellphone? These are some very simple illustrations of activities that may fall within the scope of copyright law. Is it legal? This seemingly straightforward question is almost impossible to answer. And this is the main reason why Canadians need to be involved in reform. We need to know what is and is not permissible when we deal with new technologies, if we are to be comfortable when we exercise our rights and confident when we attempt to fulfill our obligations.
When it comes to digital technology, Canada's copyright law is significantly behind the times. The Canadian Copyright Act was last amended in 1997 - before the era of file-sharing, before Internet use was as widespread as it is now, before the recent tidal wave of global change that has swamped the music, movie, and software industries. The shortcomings of Canadian copyright law have been apparent for some time, but successive governments' attempts to reform the law have failed. Proposed reforms are increasingly developed behind closed doors and with virtually no public involvement. Canadian copyright reform is anti-democratic. There has been no national discussion or debate on copyright since at least 2001.
On July 21, the federal government announced a bold new initiative that seems to respond directly to this concern. It intends to hold a series of roundtables and town-hall discussions on copyright reform across the country, building toward a new attempt at a reform bill in the fall. Industry Minister Tony Clement's stated goal of enabling Canada to become the world's leading digital society sounds exciting. He has pressed the right button. Without copyright reform, digital engagement will be hard to pursue. How can we make use of the innovative possibilities of technology with the spectre of a lawsuit constantly looming in the shadows? Once again, we have come full circle: The law needs to provide clarity about legal rights and obligations in the technological sphere. It is worth noting that other laws around the world may be more up to date than Canada's, but no country has really achieved the fine balance of representing human rights, culture and privacy concerns effectively and in such a way as to offer a suitable counterweight to corporate interests. If we get it right, the world will look to Canada for leadership.
For most Canadians, copyright law has increasingly come to mean limitations - limits on our rights to use information, to communicate knowledge, to be creative in our work and play. Copyright means control, and that control is in the hands of big business. The tone comes from the United States, where the highly controversial Digital Millennium Act of 1998 set the stage for corporations - the influential music, software, and Hollywood movie lobbies - to make money from new technologies. Everything that is possible with new technologies should be controlled by copyright, they seem to say - the idea of private, non-commercial use belongs in the past.
They are treading on thin ice, however. Copyright protects a business model, and all the evidence suggests that the old business model is obsolete. File-sharing is a reality that will not go away. Creating technological obstacles to works will only lead to new technologies to circumvent them. Criminalizing dealings with so-called "anti-circumvention" or technological protection measures will stifle certain types of innovation, and make criminals of people with a talent for innovation. (Is a cellphone lock or a region-coded DVD really about copyright protection anyway?)
Lawsuits against individuals, such as those that have recently made headlines in the United States and Europe, will alienate the public. Making Internet service providers responsible for downloading activities could lead directly to invasions of privacy: Unless an ISP reveals information about the individuals using its system, often in the privacy of their own homes, how can the necessary evidence of copyright infringement be gathered?
The two keywords of copyright reform should be balance and clarity: Balance in giving weight to the interests of the public and individual authors and artists; and clarity in expressing the rights and obligations of those of us who create, use and exploit copyright works. At one time or another, almost all of us find ourselves at different points in the cycle of knowledge - sometimes using, sometimes creating, sometimes communicating these works. We all have an interest in the protection of authors and in access to knowledge. These are not special interests; they are everyone's concerns.
Copyright reform could bring many benefits to Canada. Will the government use this chance, or will it be yet another wasted opportunity?
Mira Sundara Rajan is Canada Research Chair in Intellectual Property Law, associate professor of law at UBC and author of Copyright and Creative Freedom.