Interpretive Dimensions

• Author: Cameron Hutchison
• Pages: 13-42

[13]

 

Interpretive Dimensions

A. INTRODUCTION

is chapter begins with a discussion of the attributes of digital tech-

nologies (referred to as “digital facts”) and the challenges these pose

for copyright law. ese attributes are both familiar and strange. ey

relate to issues that are not wholly unfamiliar to copyright law but in

a way that is radically dierent. In this sense, it is unclear whether to

classify them as dierences of kind or of scale though they have surely

profoundly changed copyright. Section C considers the approaches to

statutory interpretation used in response to these challenges. Finally,

in Section D, on principles of law, special attention is given to techno-

logical neutrality as an interpretive tool for adapting copyright law to

the new digital reality.

B. DIGITAL FACTS

e advent of digital technologies and the Internet brought with it the

uncertain spectre of whether existing legal regimes were capable of

regulating this groundbreaking technology. e early legal commentary

split into two camps: those who doubted the ability of law to respond

to a game-changing technology and those who viewed the Internet as

1 See, for example, David R Johnson & David G Post, “Law and Borders—The Rise

of Law in Cyberspace” (1996) 48 Stanford Law Review 1367 at 1370 [emphasis in

  

[14]

merely the latest phenomenon demonstrating the law’s ability to adapt

to new technology. A quarter century later, we know that the latter view

prevailed and that the law has shown remarkable facility for adapting

existing doctrine to this disruptive technology. It has done this through

two principal means: the creation of entirely new regimes to oset the

potentially disruptive eects (e.g., anti-circumvention measures), as

well as the accommodation of digital dierentness within existing legal

doctrine (e.g., tiered meanings of the authorization right)

But what was so dierent about the Internet that it precipitated

this debate? And what is it about this dierentness that remains rele-

vant today and continues to present challenges to the interpretation of

copyright rules? ere are four factual attributes of digital technologies

in response to which policy-makers and courts have struggled to make

adjustments. It is hard to classify these attributional dierences as be-

ing of kind or merely scale. e problems they presented were certainly

not unheard of prior to the Internet. Illegal copying and sharing of con-

tent, for example, is as old as copyright. But the scale of the problem

caused by digitization has been colossally magnif‌ied.

original], who argued that the paradigm for legal regulation in the real world does

not f‌it with cyberspace. They argued that the eects of Internet communications

are global such that states lack power or legitimacy to regulate them.

The rise of the global computer network is destroying the link between geo-

graphical location and (1) the power of local governments to assert control over

online behavior; (2) the eects of online behavior on individuals or things; (3)

the legitimacy of a local sovereign’s eorts to regulate global phenomena; and

(4) the ability of physical location to give notice of which sets of rules apply.

Instead, Internet behaviour must be addressed through means that are unique to

the features of the technology, for example, online communities or passwords. See

also David G Post, “Against ‘Against Cyberanarchy’” (2002) 17 Berkeley Technology

Law Journal 1365; and Mark A Lemley, “Place and Cyberspace” (2003) 91 California

Law Review 521.

2 See, for example, Jack L Goldsmith, “Against Cyberanarchy” (1998) 65 University of

Chicago Law Review 1199 at 1218. (It is feasible and legitimate for real-space law to

regulate online behaviour. The challenge lay in applying traditional legal doctrine

to the novel Internet context. This is manageable, however.)

3 See discussion in Section E, below in this chapter, about the authorization right as

interpreted in CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13 [CCH]

(as a control test in the analogue environment) and in Society of Composers, Authors

and Music Publishers of Canada v Canadian Assn of Internet Providers, 2004 SCC 45

[CAIP] (as a higher-threshold knowledge test in the digital environment).