A Canadian copyright narrative

Abstract

Copyright policy, like other major areas of public policy, requires a solid anchoring in fundamental principles. That anchor can only be found through a clear understanding of the purpose of copyright.One could rely on public choice theory and posit that by allowing various stakeholders to push their issues the end-result will be balanced. From a pragmatist’s perspective, the theory rests on three key assumptions. First, that all interested parties are represented by (equally) well equipped experts. Second, that these experts have correctly analyzed not only the current state of play but also the predictable future and correctly devised measures (including, but not limited to, legislative amendments) that will adequately align the regulatory framework with their objectives. Third, the end result of blending the various “adequate” and well-formulated proposals in a single politically acceptable package will maintain the (correct) analysis of each (equally well equipped) lobby and not produce unintended or negative consequences. If one accepts that these assumptions are well founded, then by all means the government and Parliament should limit themselves to a clearinghouse function whose main objective is to keep everyone equally happy (or as minimally unhappy as possible).One may also disagree with one or more of the above assumptions. I will declare myself to be one of those skeptics, one who believes that proper policy is made when the policy objective is identified from a national interest perspective, not just by mosaicing sectoral interest groups, and then an objective analysis of the measures designed to implement the objective is made that takes into account possible unintended consequences. I suggest that the first step is to develop a coherent discourse, a narrative. This is what I suggest is needed in the copyright domain. The power of a narrative is at least three-fold: it guides policy-making; it assists courts in interpreting copyright laws; and, with proper education, it increases understanding and, hopefully, internalization of copyright norms.To develop a copyright narrative, one probably should begin by looking at the roots of the current system. One of the problems of copyright policy in North American is that it is a house built on someone else’s foundations, though at times we are not exactly sure whose foundations. This is nothing new. After all., Canada and, in a different way of course, the United States have “imported” the Common Law, the French Civil Code (Louisiana, Quebec) and several other parts of their legal edifice, state, provincial and federal, from other countries. There are differences, however, between copyright and, for example, the common law. The volume of contract, property and tort cases, as well as doctrinal debate, restatements etc. – interspersed with numerous statutory interventions of course – have allowed us both to understand the origins of common law rules and to transform, and adapt, many of the underlying common law concepts. Can the same be said of copyright? Seventeenth century debates in Brittan, and elsewhere in Europe from which the first copyright statutes emerged, had the great merit of forcing the courts in those jurisdictions to examine the whys and wherefores of copyright law with much greater depth than was the case in North America, until recently.The perceived need to anchor copyright debates in a solid policy context and, hence, to develop a coherent (and hopefully convincing) narrative has been the subject of excellent contemporary research. We are indebted to a number of scholars for their work in this area. The attempt to find normative applications from a historically derived model for copyright is not new either. However, the research thus far tends to provide a blurred picture, by espousing justificatory theories based on one or many of the following: commercial and personal interests of authors, understood as property and/or liability rules; commercial interests of publishers and other “rights holders” and/or the social costs of overprotection and the related economic-driven search for an optimal point of protection.In Part II of this paper, I will look at the Canadian narrative and try to present a faithful picture of its current state of evolution. To do so, however, a detour via England is required, because that is whence the soil from which the Canadian narrative comes. This historical detour will be the focus of Part I. Part III will suggest a path for the next stages of the Canadian narrative that is both consistent with international norms and hopefully useful in moving the debate forward. That part ends with a brief look at the impact that the linkage with trade rules may have on copyright.