Local Global Literacies for Judges: Canadian/US Judicial Opinion Approaches to Globalization in Copyright Contexts

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What is happening at the intersection of globalization, copyright law, and the rhetorical construction of judicial opinions, i.e. how are high court judicial opinions processing and reflecting “globalization”? An interesting examination of these issues takes place by studying copyright-context judicial opinions of Canada and contrasting those opinions with US approaches. Studying judicial opinions of high courts is relevant when considering the impact of globalization on worldwide copyright law. Such texts are powerful writings that like any writing have intended audiences, an author, and contain all of the rhetorical devices used to make effective communication. When examining the effect of globalization on the rhetorical construction of judicial opinions, it must be acknowledged that judicial opinions are important to examine because they serve and circulate in commerce as part of the “vast network of international law and dozens of international organizations [that] make globalization possible” (Globalization101.org). It must also be acknowledged that “globalization” is a problematic term. It is defined variously as “highly complex and contested ... [the] increasing interdependence” of various processes and levels (Starke-Meyerring, 2005, p. 470), and as the attempt to promote long-term global coordination within institutional orders (Jessop, 1999); it is associated with the “shifting out of individuals as well as the knitting together of interactions” (Latour, 1996, Brandt & Clinton, 2002). The term “globalization” is contested such that some scholars have come up with terms such as “glocalization.” Swyngedouw (2001) defines the phenomena of “glocalization” in part as an effort to maintain local identities in light and use of global markets (see also Dinwoodie, 2004). Jessop refers glocalization as a strategy to maximize place-based competition in reference to global scales involving “strategies to build global advantage by exploiting local difference” (Jessop, 1999, p. 12). For example, if Canadian copyright-context judicial opinions refer to the law of other countries, but then distinguish Canadian law as both different and better, this is an act of “glocalization.” Amusingly, Boyd (2006) defines glocalization as “one of the most grotesque words that academics have managed to coin.” In other disciplines, there has been a call to attend to implications for defining literacy in light of globalization, and to examine how to facilitate such literacies (Huckin, 2002; Stark-Meyerring, 2005). It is appropriate to also make such a call to judges writing judicial opinions that are incredibly powerful documents. What I am calling for in this paper is the acquisition and exercise of global literacies among judges who write opinions on copyright law, especially judges of high courts whose opinions will be globally connected, localized, and folded in by foreign jurisdictions. Based on issues arising in analyses of comparative US Canadian judicial writing choices in light of globalization, such global literacies include at least in part: 1) the ability to “unsee” theoretical constructs such as the global-local binary; 2) the ability to “look to” other countries, sovereign states, or cultures/communities for paradigms from which to borrow and/or check one’s own practice; 3) and the ability to anticipate in and with writing the speed at which information and technologies are developed and distributed globally. “Looking to” other countries involves the taking of a global perspective or world view. This is similar to what Sun discusses when she asks writing researchers to think globally about local writing practices. But these three global literacies call for more than taking a global perspective. Globally literate judges must not only make globalizing connects, but must also make localizing moves by checking local situated practices against global paradigms and simultaneously having the skill to “unsee” the legal constructs and ways-of-thinking that were not necessarily created with networked, globalized environments in mind. Most of the laws existing currently did not anticipate the WWW. It seems obvious ... but it is not detrimental to routinely remind oneself of this. In order to show the implications of such literacies-in-action through a comparative discussion of judicial opinions (with Canada as my primary example), I focus first on general legal infrastructure in the two countries and then specifically on the paradigmatic cases of CCH Canadian Ltd. v. Law Society of Upper Canada (2004) and BMG Canada Inc. v. John Doe (2004). CCH serves as the prime example of judicial-global literacies-in-action by Judge McLachlin, while BMG Canada serves as an illustration of how CCH has been folded into a later fact pattern through globally literate choices of Judge Finckenstein. My paper illustrates why global literacies are important to judges writing judicial copyright-context opinions and how the literacies have played out in the real world through a comparison of US Canadian copyright localization practice via judicial opinions.