The following is an excerpt from In Defence of Copyright by Hugh Stephens (Cormorant Books, August 2023)
Copyright has been developed over the past three hundred years, drawing on both a utilitarian, economic rationale rooted in common law and a moral, property rights argument based on continental civil law traditions. It has expanded from limited geographical coverage confined to specific jurisdictions to become an internationally accepted and regulated regime, governed by treaty and incorporating international dispute settlement practices. As technology has changed, copyright law has adapted. From the outset, it was limited in terms of its duration, and, over the years, derogations and exceptions have been formulated to provide a range of specified uses not licensed by copyright holders. Its current challenges arise from new technologies, such as artificial intelligence and blockchain, and from very liberal court interpretations regarding fair dealing and fair use that have eroded traditional protections for authors.
In the Canadian context, these court interpretations have undermined much of the economic incentive for authors and publishers to produce materials for the elementary, secondary, and postsecondary education sectors, as we saw in Chapter 6. One of the principal reasons for providing protection to authors is to encourage production of new works. As the Statute of Anne put it, “for the encouragement of learning.” While fair dealing (or fair use in the U.S.) exists to provide a balance, allowing limited access to an author’s works without permission to promote learning and to facilitate functions such as literary criticism or news reporting has, in Canada in particular, gone too far. There has been steady expansion both in terms of court interpretation and additional statutory exceptions.
Limited exceptions for literary criticism or news reporting make sense because requiring permission for such uses would put manacles on these necessary functions, but over the years, other exceptions such as private study and research have been expanded. Since the early 2000s, through several key rulings, the Supreme Court of Canada has led the way in punching ever wider holes in authors’ protection. Added to these rulings was the ill-conceived and overly broad exception for education included in the Copyright Act in 2012. The impact on authors and the publishing industry has been highly damaging and has led to a direct reduction in educational publishing in Canada.
While it is entirely reasonable to allow students to access excerpts of copyrighted material without needing to secure a licence, which would be almost impossible for them to do, it is not unreasonable to expect that the institutions that provide educational materials (and which, in the postsecondary context, charge students for these materials) should obtain licences from copyright holders when they reproduce or aggregate content, such as in course packs or by photocopying or digitally reproducing content. Until recently, that process was facilitated through collective licensing, with Access Copyright and Copibec providing one-stop shops. Recent court rulings have pulled the legs out from under that system, leaving no recourse but further litigation or legislative changes. While the education exception is unlikely to be removed, it should be limited so that it applies to teaching institutions only when licensed copies of works are not commercially available.
Robust copyright protection is essential for any country that wants to encourage innovation and promote cultural sovereignty. Copyright-related industries, such as publishing, filmmaking, music, video game production, software development, and other creative activities can only thrive if the essence of what is produced — the creative intellectual property — is protected as an incentive and as a reward. We saw in Chapter 4 how piracy saps the strength of copyright industries and undermines creativity and artistic production. It diverts billions of dollars away from authors and creative industries. We also saw how much is contributed by copyright industries to economic output. In Canada, that figure is over 3 percent of GDP; in the U.S., it is more than double that number. It is not a coincidence that the United States takes the protection of intellectual property more seriously and gives it a higher priority than governments have traditionally done in Canada.
While the economic argument for copyright protection is important, we should not lose sight of cultural sovereignty and equity arguments. If a country values its literary tradition, its history, its music, its art, and its ability to create and distribute stories through audiovisual means, it will honour and respect copyright. The weakening of the Canadian educational publishing market described above will reduce the amount of local content produced for Canadian schoolchildren. In the nineteenth century, the limited copyright protection afforded to foreign works in the United States encouraged U.S. publishers to pirate British works rather than invest in U.S. literature. Noted American historian Arthur M. Schlesinger wrote, “So long as publishers […] could reprint, or pirate, popular English authors without payment of royalty, and so long as readers could buy such volumes far cheaper than books written by Americans, native authorship remained at a marked disadvantage.” Canada has produced a robust literary output in recent years, but most writers continue to struggle economically. Weakening copyright protection and taking ineffective action against piracy does nothing to encourage writers, artists, musicians, filmmakers, or any other creators to invest the time, effort, and money to continue to bring into existence new works that reflect local perspectives.
Copyright also has an important role to play in promoting equity and diversity. Copyright is blind to factors of race or gender. Once a work has been created, as long as it meets the established criteria (originality, fixation, and authorship), it is granted copyright protection automatically, assuming the creator is a resident of a Berne Convention country. An artist in Zaire, an author in Cuba, a composer in Greenland — they all qualify. I would argue that copyright is the ultimate enabler of democratic economic and moral rights because the simple act of creation confers the right. Unlike other forms of intellectual property, important as they are, copyright requires no formal process of registration. For example, it can be argued (and no doubt proved) that racialized or marginalized groups are underrepresented in the patent filing process because of barriers to filing (the process, cost, access to the system, and so on). There are no such overt barriers with copyright.
Hugh Stephens is the author of the blog Insights on International Copyright Issues. He is the former vice chair of the Quality Brands Protection Committee and was senior vice president (public policy) for Asia-Pacific for Time Warner.