Interests in the Balance
| Author | Teresa Scassa |
| Pages | 41-65 |
Interests
in the
Balance
Teresa
Scassa
A.
INTRODUCTION
The
starting
point
for any
exercise
in
legislative reform should
be a
con-
sideration
of the
policy underlying
the
legislation.
After
all,
the
reforms
should further
the
underlying public policy objectives.
In
Canadian copy-
right law, however,
not
only
has the
public policy underlying
the
legisla-
tion been unclear since
the
law's inception,
it has
become murkier
still
in
recent years, with competing
and
often contradictory articulations
from
policy
makers
and the
courts.
As we
stand
once again
on the eve of
signifi-
cant copyright
reform
in
Canada,
it is
useful
to
step back
and
examine
the
policy
underlying
the
legislation.
Most
recently copyright
law in
Canada
has
been referred
to as a
bal-
ance
between
the
interests
of
creators
and
users
of
works.1
Other itera-
tions
of the
balance have made reference
to a
broader societal
interest
as
well.2
Yet
such statements
are far
from
being
an
adequate articulation
of
the
interests
in the
balance. Little
attention
has
been given
to
defining
who
"creators"
and
"users" are,
or to
identifying
the
societal
interests
at
play. Further,
the
expression
of
balance between users
and
creators over-
looks
another important
— if not
crucial
—
interest:
that
of
owners.
In
SOCANv.
CAIP,
htrnb
[SOCAN]
at
para.
132.
Theberge
v.
Galerie
d'art
du
Petit
Champlain,
[Theberge].
41
TWO
i
2
IN THE
PUBLIC
INTEREST:
THE
FUTURE
OF
CANADIAN
COPYRIGHT
LAW
the
commercial marketplace
for
copyright works,
it is
rare
that
the
owner
of
copyright
in a
work
is
actually
its
creator. Many
of the
most significant
groups
pressuring
the
government
for
copyright reform represent
copy-
right
industries
and
thus
the
interests
of
copyright owners
are
central
to
public
policy considerations. Although they
are
often conflated with
the
interests
of
creators,
it
should
not be
assumed
that
they
are the
same.
In
this
chapter,
I
will explore
the
underlying purpose
of
Canadian copy-
right
as a
balance between
a
series
of
competing
interests.
I
will argue
that
there
are
many
different
types
of
"users"
of
copyright works, just
as
there
are
many
different
types
of
"creators."
I
will explore
the
interests
of
"owners,"
as
well
as the
diversity
of
societal interests
in
copyright law, including
interests
that
compete with
the
private property rights created
and
protected
by
copy-
right law.
I
will centre this analysis
in the
context
of the
massive technological
changes brought about
by
digitization
and the
Internet. Ultimately,
I
argue
for
a
more textured view
of the
competing interests
at
play
in
copyright policy.
B.
THE
PURPOSE
OF
COPYRIGHT
LAW
Unlike
that
of the
United
States,3
Canada's
constitution4
does
not
contain
any
articulation
of the
purpose
of
copyright
law.5
The
Copyright
Act6
also
lacks
an
explicit
statement
of
purpose. Until very recently, discussions
of
the
purpose
of
copyright
law
have
not
featured prominently
in
judicial
in-
terpretations
of the
legislation.
In
Compo
Co. v.
Blue
Crest
Music
Inc.,7
Estey
J.
referred
to the
Copyright
Act as
providing simply
"rights
and
obligations
upon
terms
set out in the
statute."8
United
States
Constitution,
art.
i,
§8,
cl.
8.,
html#Articlei>.
In the
U.S.
Constitution,
the
copyright
balance
is
struck
between
the
rights
of
authors
to a
revenue
stream
flowing
from
their
work
and
the
promotion
of
"the
Progress
of
Science
and
useful
Arts"."
Of
course,
even
in the
U.S.
there
is
controversy
over
the
manner
in
which
such
balances
are
struck.
See,
for
example:
Eldredv.
Ashcroft,
gov/opinions/o2pdf/oi-6i8.pdf>,
(2003)
[Eldred].
Constitution
Act, 1867, U.K.,
30 & 31
Victoria,
c. 3.
const/ci867_e.html#executive>.
Section
91(23)
of the
Constitution
Act, 1867,
ibid.,
provides
a
one-word
descrip-
tion
of the
legislative
authority
in
this
area:
Copyrights.
Copyright
Act, R.S.C. 1985,
c.
C~42,
Compo
Co. v.
Blue Crest Music Inc.,
[1980]
i
S.C.R.
357 at
373.
See
also
Bishop
v.
Stevens,
477,
where
McLachlin
J. (as she
then
was)
stated
that
"copyright
law is
purely
statutory
law,"
and
took
the
view
that
resolving
the
issues
in
dispute
was a
matter
of
statutory
interpretation.
42
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