An 'Independent' View of Bill C-32's Copyright Reform

• Author: Tina Piper
• Pages: 423-446

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  

An “Independent” View of Bill C-32’s

Copyright Reform

Tina Piper*

“Q: ARE YOU IN M YSPACE? DID YOU FACEBOOK?

YOU SHOULD DO THAT THI NGS! IT IS TERRI FIC EXPOSURE.

NOW IS A NEW PARA DIGM! WHAT IS A PARA DIGM?”

— Silver Mount Zion FAQ

“[Copyright reform] maybe works for Nick elback and Sarah McLachlan,

but has nothing to do with us.” — Interview Respondent

A. INTRODUCTION

e act of legislating copyright assumes that there is a consensus over

what copy right is: t hat those par ticipating in the dia logue of law- creation

use words similarly; that implicated parties have def‌inable interests and

use their rig hts in specif‌ic w ays; that those uses of cop yright are held by

owners as proper ty-like rights and e ntitlements. Reform of that legi slation

presumes a n essence of what copyr ight does: t hat rights holders (creators

or owners) seek to maxi mize the strength of their r ight and sell more prod-

ucts; that t he public benef‌its from i ncreased access; th at copyright prov ides

access; that a copyright m ay be regarded as a reward th at incentivizes c re-

ative production and artistic labour, and other s uch assumptions. i s no-

tion of consensus is highlighted by the fact that when closely analyzed, the

* My thank s go to the participa nts in the – Ap ril  Intellectual P roperty and the

Making and Market ing of Music in the Digital A ge workshop at Prince ton University

for their helpf ul comments and insi ght, particul arly Eric Lew is and Charity C han.

I would also l ike to thank an a nonymous reviewer, B ecky Lentz, Luc inda Tang, and

Michael Ge ist for their comments. Ple ase note that where the ter ms “interv iew

respondent” or “ interviewee” h ave been used, the per son interviewed h as asked to

remain anony mous.

 Silver Mount Zion FAQ at www.tra-la-la-band.com/f-a-q

Tina Piper

words used to def‌ine copyright are ambiguous: terms like “public,” “inter -

est,” “creator,” “user,” and “owner” are notably indeterminate. ese words

are used as met aphors, metonymies, analogies or projections and among

some g roup of people (or interests) these ter ms have a shared meaning

that allows conversat ion about copyright to proceed.

What a re the contours of that consensus, what I call for the pur poses

of this study the “copyrig ht culture,” that allow s legislative reform to pro-

ceed with some certainty about basic terms and governing proposit ions?

Like any culture, copyrig ht culture is hi storical, referential to a time and

place, path-determi ned a nd contin gent; mea ning is produced a nd d is-

seminated through var ious practices, b eliefs, arti facts and institutions.

In this introductor y section I sketch some of these features.

e memb ers of t he copy right c ulture presum ably inc lude cou rts, le gisla -

tors and those creator s, owners and users who ca n f‌it their activitie s within

the sha red belief system that allows the business of copyright law to pro-

ceed. Copyright law is primarily about the business of artistic commodities.

As G erva is ha s noted , “copy right is ‘a pro fessio nal r ight’: a righ t used b y pro-

fessionals aga inst other professionals” (or was considered t his way up until

the  s) “be cause of the need to organize the mark et for copyright works

and the related f‌ina ncial f‌lows among all the professiona ls involved.”

Several elements of thi s so-called copyright c ulture can be discerned.

First, it subscribes to an individual rights discourse rooted in “libera l and

neo-liberal assumptions,” governed by notions of individualis m, desert,

exclusion, and action out of rational self-interest. Within that framework,

 T. Scassa, “Interests in t he Balance” in M. G eist, ed., In the Public Interest — e Fu-

ture of Canadian Copy right Law (Toronto: Irw in Law, ) at , w ww.i rw inl aw.co m/

pages/content-commons/interests-in-the -balance.

 On intellectual property metaphors see the “Myths & Metaphors of Private Law and

Intellectual Propert y” series held at McGill University’s Faculty of Law in –,

http://m-m.mcg ill.c a/hom e_en.ht ml; C.J. Craig, “e Can adian Public Domain: What,

Where, and to W hat End?” ()  Can J L & Technolog y  at , http://ssrn.com/

abstract=; W. Patry, Moral Panic and the Copyright Wars (New York: OUP, ).

 C. Rojek, Cultural Studies (Ca mbridge: Polity, ).

 D. Gervais, “Use of Cop yright Content on the Inte rnet: Consideration s on Exclud-

ability a nd Collective Licen sing” in M. Geist, e d., In the Public Interest — e Future

of Canadian Copyr ight Law (Toronto: Irwi n Law, ) at , ww w.ir wi nlaw. com /

pages/content-commons/use-of-copy right-content-on-t he-internet- -considera-

tions-on-ex ludability- and-collective -licensing-- -daniel- gervais.

 Ibid. at .

 C.J. Craig, “R econstructi ng the Author-Self : Some Feminist Les sons for Copyright

Law” (– )  Am U J Gender Soc Pol’y & L  at  . I leave open the ques-

tion of whether t he “copyright cultu re” tends to a partic ular gender, race, rel igious