Coming to Terms with Copyright

• Author: David Lametti
• Pages: 480-516

Coming

to

Terms

with Copyright

David

Lametti

A.

INTRODUCTION

Canadian

copyright governance

is

being pulled

in

different

directions.

The

international trend, indeed

the

dominant trend, especially

as

evidenced

by

WIPO

initiatives such

as the

WIPO

Copyright

Treaty1

and

WIPO

Pho

no-

graphs

and

Phonograms

Treaty,2

by US

initiatives such

as the

Digital

Millen-

nium

Copyright

Act3

and

Sonny

Bono

Copyright Term

Extension

Act,4

as

we

ll

as

recent

bilateral

treaties

between

the US and

various

small

states,

appears

to be one in

which intellectual property

is

conceived solely

in

terms

of

The

author would like

to

thank

students

in his

Copyright Theory class

in the

spring

of

2004

for

inspiring

discussions

and the

Facolta

di

giurisprudenza,

Uni-

versita

degli

studi

di

Perugia

for

providing

the

"material support"

for the

writ-

ing of

this paper.

He

would also like

to

thank

his

research

assistant

and

McGill

Dobson

Fellow

D.

Gordon Cruess, Karen Lynne Durell

of the

McGill

Centre

for

Intellectual Property

Policy,

student editors

at the

University

of

Ottawa,

and an

anonymous

reviewer

for

their corrections, comments

and

suggestions.

1

WIPO

Copyright

Treaty,

World Intellectual Property Organization, 1996,

.

wipo.int/treaties/en/ip/WCr/trtdocs_woo33.html#preamble>

[WCT].

2

WIPO

Performances

and

Phonograms

Treaty,

World Intellectual Property Organi-

zation,

1996,

.

3

U.S.,

Bill

H.R. 2281,

Digital

Millennium

Copyright

Act,

losth

Cong.,

2d

sess.,

1998,

>

[DMCA].

4

Sonny

Bono

Copyright

Term

Extension

Act,

505

U.S.C

(1998), .

gov/legislation/s5O5.pdf>

[Copyright

Term

Extension

Act].

480

SEVENTEEN

rights

and in a

fashion

in

which such rights

are

treated ever more abso-

lutely. This

is

amplified

by

technological advances

that

allow

IP

rights

to

be

protected with increasing diligence

and

efficacy.

Almost

as if in

reaction

to

this

dominant trend there

is

heightened

in-

terest

in

protecting

the

public domain

of

ideas,

in

recognizing

the

limited

nature

of

copyright

and its

larger social purposes,

and in

rights-limit-

ing

doctrines such

as

fair

dealing

or

fair

use. Indeed,

the

recent decision

of

the

Supreme Court

of

Canada

in

CCH,5

recognizing

the

fundamental

point

that

fair dealing

is a

part

of

copyright

and not

merely

an

exception

to it,

stands

as the

high water mark

of

common sense

in a

world tending

far

too

strongly

in

favour

of an

absolutist view

of

intellectual property

as

composed uniquely

of

rights. Thus movements

for

generally available,

publicly-licensed

software,

or

permissive

use

licensing schemes

for

more

traditional

works such

as

Creative Commons,

are

gaining

increased cur-

rency.

Technology

is

also having

an

impact

for

those favouring

a

more

limited view

of

copyright,

or

indeed those

who

wish

to

deny copyright pro-

tection altogether, allowing

for

copyrighted materials

to be

more

freely

available

and

shared.

The

recent

reforms

to the law of

copyright proposed

by the

Government

of

Canada,

in

marked contrast

to the 9-0

view

of the

Supreme Court

in

CCH,

appear

for the

most

part6

to be

tending towards

the

absolutist view,

weakening

the

availability

of

materials

in the

public domain,

and

much

to

the

detriment

in the

long

run of

those individuals

in the

business

of

cre-

ating

and

producing ideas. (While asserting individual private property

rights over

the

public domain might

be

helpful

in the

short term,

enfee-

bling

the

public domain

can

only have negative consequences

on

everyone,

including creators,

in the

long run.)

One

area

that

reflects

the

absolutist

position

is in the

treatment

of the

term

of

protection

for

copyright.

In

this

area,

the

Canadian government

is

proposing

to

increase

the

length

of the

term

of

copyright with respect

to

photographs

from

fifty

years

from

the

taking

of the

photo7

to the

life

of

the

photographer plus

fifty

years.

This

is a

change

that

will

affect

cor-

porate owners only; non-corporate owners

of

copyright

in

photos have

al-

5

CCH

Canadian

v. Law

Society

of

Upper

Canada,

[2004]

i

S.C.R. 339, .

org/ca/cas/scc/2oo4/2OO4SCCi3.html>,

2004

SCC 13,

[CCH].

6

An

exception

is

some

expanding

of the

educational

exemption,

although

one

might

argue

that

the

proposed

expansion

is

insufficient.

7

Copyright

Act,

R.S.C.,

1985,

c.

C-42

(as

amended)

s. 10,

/

en/C-42/39253.html>.

Coming

to

Terms

with

Copyright

481

Chapter Seventeen

IN THE

PUBLIC

INTEREST:

THE

FUTURE

OF

CANADIAN

COPYRIGHT

LAW

ready

a

term

of

"life

plus

50"

years.

The

rationale given

for

this

proposed

change

is to

harmonize

the

treatment

of

photographs with other copy-

righted works, where

the

term

in

Canada

is

"life

plus

so."8

In

addition,

the

change

was

proposed

in

order

to

bring Canada

in

line with terms

in the

WCT.

This

proposal,

in and of

itself rather innocuous, evidences

a

num-

ber

of

significant errors

in

thinking about copyright:

(i)

that

there needs

to be

harmony

of

terms

as

among

different

kinds

of

works protected

by

copyright;

and (2)

that

we

need

to

"harmonize upwards"

by

increasing

the

length

of

copyright

terms.

Indeed,

if the

Copyright

Term

Extension

Act

and

copyright terms included

in

bilateral agreements between

the US and

Jordan, Singapore

and

Chile respectively

are any

indication, there will

be

increasing pressure

to up the

length

of the

standard copyright term

from

"life

plus

50" to

"life

plus

70"

years.9

In

my

view,

it is

time

to

begin re-thinking systematically

the

larger

is-

sue

of

copyright terms

(preferably

in the

context

of a

larger systematic

re-thinking

of

copyright). With some

exceptions,10

the

extent

to

which

the

copyright

term

is

taken

as

sacrosanct

is

surprising.

In my

view,

we

need

to not

only shorten

the

term

of

copyright generally,

but

also

to

vary

the

terms

of

copyright

as

between

different

kinds

of

works according

to the

context

of the

right

and the

resource protected

by

copyright. Finally,

we

might consider

strengthening

these

proposals

with

a

registration require-

ment, especially

for

longer terms, putting some

of the

onus

on

creators

themselves

of

identifying

and

protecting works

of

ongoing value.

What

this

article provides

is a

conceptual

and

philosophical structure,

albeit skeletal,

for

copyright reform generally

and for the

reform

of

copy-

right

terms

in

particular.

The

argument herein

is not

grounded

in the

particular context

of

term extension debates

in the US, nor

based

on

free

speech

considerations, which while important

can

lose their persuasive

force

in the

face

of

property rights

talk.11

It is

also

not

grounded

on

tech-

nologically-driven

imperatives. Rather,

the

argument

is

grounded

on the

general concepts

of

property

and of

copyright,

and in the

theoretical jus-

8

Ibid.,

at s. 6.

9

S.E. Trosow, "Fast-Track

Trade

Authority

and the

Free

Trade

Agreements:

Impli-

cations

for

Copyright Law" (2003)

2

CJLT 135.

10

Lawrence Lessig,

The

Future

of

Ideas:

The

Fate

of

the

Commons

in a

Connected

World

(New York:

Vintage

Books, 2001)

at

250.

11

When

a

right

is

framed

as a

property

right,

it

often

trumps

other

kinds

of

rights.

A

sophisticated

analysis

of

when

rights-talk

meets

property

talk

can be

found

in L.

Underkuffler,

The

Idea

of

Property:

Its

Meaning

and

Power (Oxford: Oxford

University Press,

2003).

482