Interpretive Dimensions

AuthorCameron Hutchison
 
Interpretive Dimensions
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.
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
  
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).

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