History in the Balance: Copyright and Access to Knowledge

• Author: Myra Tawfik
• Pages: 69-89

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 

History in the Balance:

Copyright and Access to Knowledge

Myra Tawk

A. INTRODUCTION

Copyright law is generally understood to encompass w ithin its policy em-

brace the interests of three constituent groups: users, creators and copy-

right industries. Each of these groups has found enough support in the

history of copyright law to arg ue th at its interests should predominate

within t he legal framework. As interested parties, their advocacy posit ion

is to be expected. e role of Parliament is dif‌ferent however. It is the legis-

lature’s responsibility to be dispassionate, to mediate between these often

compet ing interes ts in order t o craft ap propriate legisla tion in the name of

the greater good. And by “appropriate,” I mean bala nced in setting the ap-

propriate parameters between adequate protection and adequate access.

e idea of “balance” within copyr ight law is not a new concept nor i s

it the creation of “radic al extremists’ or “pro-user zea lots.” Rather, as the

 In this paper, I w ill refer to authors and c reators interchangea bly. I will also spe ak of

publishers, conte nt providers and indus try to design ate the same constitu ent group. e

term copyr ight holder will b e used to designate bot h creators and content provide rs.

 Minister of C anadian Herit age and Of‌f‌icial L anguages, James Moo re, in a speech to

the Chambe r of Commerce IP Council on Ju ne , . See CBC, “Cop yright Debate

Turns Ugly,” online: www.cbc.ca/technology/story////copyright-heritage-

minister-moore.html.

 Sarmite Bu lte, former Chair of t he Standing Comm ittee on Canadia n Heritage. See

www.robhyndman.com////controversy-over-bulte-comments-at-all-

candidates-debate.

Myra Tawfik

history of copy right law demonstrates, the entire legislative system re-

quired a balanci ng between the var ious interests in order to achieve its

primar y policy objective: that of fostering an environment for the gen-

eration, dissemination and acquisition of knowledge. e focus was not

on pitt ing creators against indus try or industry against users as we are

wont to do in thi s modern era. Rather, the law ref‌lected a tripartite, i nte-

grated sy stem that encouraged creators to generate knowledge, industr y

to disseminate it and users to acquire it and, hopefully, reshape it into new

knowledge. As such, the genesis of copyright l aw, i ncluding the earliest

Canadia n experience, has much to teach modern copyri ght policy-makers

about e stablishing the appropriate normative policy f ramework. i s is

especial ly so in relation to the latest attempt at co pyright reform, An Act

to amend the Copyright Act (Bi ll C-), introduced on  June .

Part  of this paper will discuss the nature and purpose of copyright law

by canvassing the early exper iences of the UK, France, the US and Canada.

Part  wil l turn to review of Bil l C- in light of the policy lessons g leaned

from histor y.

B. PART : THE NATURE AND PURPOSE OF COPYRIGHT

LAW: LESSONS FROM HISTORY

e f‌irst copy right statute orig inated  years ago in England in the form

of the Statute of Anne or An Act for the Encouragement of Learning by Vesting

the Copies of Printed Books in the Authors or Purchasers of such Copies, during the

Times therein ment ioned. Although its ver y title sets out its underlying pur -

pose, tracing its contours ha s posed somewhat of a challenge to scholars.

e traditional v iew of the law was that it was desig ned primarily with

publishers in mind — in other words, that it sought, f‌irst and foremost,

to meet the needs of the book trade. However, in the l ast decades of the

twentieth century, scholars b egan to place more emphasis on sit uating

  Eliz. II, . Text of Bi ll available at www.parl.gc.ca/content/hoc/Bills//

Government/C-/C-_/C-_.PDF.

  Anne c. C (/).

 A. Birrell, Seven Lecture s on the Law and History of Co pyright in Books ( London: Cassel l,

). L.R. Patt erson, Copyright in Historical Perspective (Nashvil le: Vanderbilt Univer-

sity Press, ). See also in this regard the work of book historian J. Feather Publish-

ing, Piracy a nd Politics: An Historical St udy of Copyright in Br itain (London: Man sell,

); J. Feather “e B ook Trade in Politics: e Mak ing of the Copyright A ct ”

()  Publishin g History ; J. Feather “e C ommerce of Letters: e Stu dy of

the th c. Book Trade” ( )  Eighteenth-Centu ry Studies .