Technological neutrality: toward copyright convergence in the digital age.

• Author: Siu, Kevin P.
• Position: Canada

ABSTRACT I INTRODUCTION II WHAT IS TECHNOLOGICAL NEUTRALITY? Technological Neutrality in Canadian Jurisprudence The Problem of Perspective III CONVERGING TECHNOLOGIES IV DANGERS OF NON-NEUTRALITY IN COPYRIGHT LAW Video Streaming, Cable Television, and Copyright Law Pitfalls of Technological Uncertainty V CONVERGING THE COPYRIGHT ACT Structural Barriers Against Neutrality in Copyright Law Toward a Singular Right VI CONCLUSION I INTRODUCTION

The principle of technological neutrality is an interpretive tool that has been used to maintain a balance between creators and users of copyrighted works without imposing undue restrictions on new innovations. (1) As technology continues to evolve, the principle will play an ever-larger role in ensuring that copyright law remains relevant and effective.

On July 12, 2012, the Supreme Court of Canada issued five judgments on copyright law, (2) many of them settling issues related to the application of the Copyright Act (3) to Internet-based technologies. The principle of technological neutrality played a central role in these decisions, most prominently in ESA v SOCAN (4) and Rogers v SOCAN. (5) All five judgments, however, were made in the context of copyright laws that largely predated the Internet revolution. (6)

On November 7, 2012, the Copyright Modernization Act (7) was proclaimed into force by Parliament, the culmination of a decade-long effort to update Canadian copyright law for the Internet age. The new amendments to the Copyright Act provided more rights for both authors and users, and added several provisions specifically aimed at Internet-based activities. While the amendments provided greater certainty to some areas of copyright law, the Copyright Act has arguably become more technology-specific. As will be discussed, this legislative direction may give rise to problems in applying case law.

The purpose of this article is to examine how copyright law can best develop in an era of fast-paced technological innovation. I will examine the importance of the principle of technological neutrality in Canadian copyright jurisprudence, and discuss how the development of technology has affected copyright law. I will then explore how the discriminatory application of copyright law to different technologies can lead to economic and technological inefficiencies. Finally, I argue for a broader application of the principle of technological neutrality and propose that copyright law would be better served by a shift from the bundle of rights approach to a general right to commercially exploit original works.

II WHAT IS TECHNOLOGICAL NEUTRALITY?

Technological neutrality is an interpretive principle that has been viewed by its proponents as an essential mechanism in ensuring that new technologies are not hindered by copyright law. (8) The principle has been adopted by courts in order to apply the Copyright Act to technologies that may not have been envisioned by Parliament at the time the legislation was drafted. (9) Older case law has referred to this principle as "media neutrality", which was defined in Robertson v Thomson Corp (10) to mean "that the Copyright Act should continue to apply in different media, including more technologically advanced ones". (11) A similar definition was provided by the Supreme Court in ESA, describing the principle of technological neutrality as requiring "that the Act apply equally notwithstanding the technological diversity of different forms of media". (12) This principle is based on the wording contained in section 3(1) of the Copyright Act, which describes the right to produce or reproduce a work "in any material form whatever". (13)

In other words, the principle of technological neutrality means that copyright law should apply in an equal manner to different technologies that express the same work. The Copyright Act should not attach more (or less) copyright liability based solely on the technology used--a photocopy of a book should, in theory, be equivalent to a digital copy of the same book for the purposes of the Copyright Act.

The goal of the principle is to ensure that new technologies are not unduly hampered by copyright law, while maintaining balance between the rights of creators and users of copyrighted works. (14) It protects authors by ensuring that new methods of disseminating works remain within the scope of their rights, so that one cannot escape copyright liability simply by using new technology. It also ensures that users who use new technologies to access existing works are not disadvantaged through additional copyright liability. An overly technology-specific copyright regime can lead to more litigation and less efficiency, as non-neutral regimes tend to encourage engineers to design around the law. (15)

The importance of technological neutrality is reflected by the historical development of copyright law. Technological innovation has always been a driving force of change in copyright policy. The first copyright statutes were developed in the eighteenth century largely in response to changes in literary commerce resulting from the widespread use of the printing press. (16) Since then, copyright laws worldwide have continued to evolve in response to new technological developments. The advent of radio, television, computers, and the Internet have all had a significant impact on the laws of copyright.

The principle of technological neutrality has provided courts with flexibility in applying existing laws to new technologies. This does not mean, however, that courts should be blind to the differences between various technologies. There are, after all, fundamental differences between the sale of physical goods and digital goods. But insofar as

it is possible, courts will apply the principle of technological neutrality in an attempt to avoid discriminating against new technologies.

Technological neutrality also has a secondary dimension: in addition to being non-discriminatory toward new technologies that are used to disseminate copyrighted works, technological neutrality also prevents interference with technologies that have no direct relation to the purposes of copyright law. (17) Thus, a company that provides Internet access will not be liable for copyright infringement merely because users may violate copyright using the company's technology. (18) The Copyright Modernization Act explicitly recognizes this kind of neutrality, with a new provision exempting network service providers from such liability subject to a "notice-and-notice" regime, (19) and another preventing liability for temporary reproductions made solely to facilitate technological processes. (20) This second aspect of technological neutrality is of great importance to intermediaries such as Internet service providers and can affect other areas of law, including the regulation of telecommunications. The remainder of this article, however, will focus on the first aspect: how different technologies used for the dissemination of copyrighted works are treated under the law.

1. TECHNOLOGICAL NEUTRALITY IN CANADIAN JURISPRUDENCE

   The statutory basis for technological neutrality--the phrase "in any material form whatever" in section 3(1) of the Copyright Act--has been in place since the 1921 version of the Copyright Act. (21) This broad language reflects Parliament's intention of drafting legislation in a "media neutral" manner so as not to restrict copyright protection to particular physical forms. (22) Despite the statutory language, however, the concept of technological neutrality did not appear prominently in the case law until 1986 in Apple Computer, Inc v Mackintosh Computers Ltd. (23)

   Apple was a case about the extent of copyright protection for two computer programs--Autostart ROM and Applesoft--that were essential components of Apple II+ computers. The defendants were in the business of selling unauthorized clones of Apple computers. In order to create machines that were compatible with software written for Apple computers, they copied the programs from the physical read-only memory (ROM) chips of the original system, making only minor modifications. (24) They achieved this without directly copying the original source code written by Apple's engineers by extracting only the physically embedded code on the chips in Apple's computers. (25) There was no dispute that copyright applied to source code written by engineers. (26) The issue was whether the computer programs, when embodied in physical form by being etched in a silicon chip, were still protected by copyright. (27) The defendants argued that once the software had been burned into a silicon chip, the resulting physical form was a merger of the underlying idea the code represented and its expression, and therefore not protectable by copyright law under the merger doctrine. (28) Had this argument succeeded, the copyrightability of a computer program would have depended on the form of its embodiment.

   The trial judge rejected the defendants' claims, and held instead that the copied physical ROM chips were a reproduction of the original source code in which copyright subsisted, and that section 3 of the Copyright Act clearly extended protection to the programs embedded on the chips:

   Section 3 provides that "copyright means the sole right to produce or reproduce the work ... in any material form whatever." In my view that clearly covers the program as embodied in the ROM chip. To find otherwise, it seems to me, would require reading words into s. 3 of the Copyright Act which are not there. (29) The judgment, which was upheld by both the Federal Court of Appeal (30) and the Supreme Court of Canada, (31) demonstrated the difficulties of applying copyright law to novel technologies. (32) Despite this, the court at each level was able to apply the Copyright Act in a manner neutral to physical or technological form.

   (i) Robertson v Thomson Corp (33)

   The term "media neutrality" did not gain prominence in...