Marcelo Thompson

Osgoode Hall Prof Pina D’Agostino has published a sensible column on Bill C-61 in the Toronto Star. Much unlike Bill C-61, her message was clear — we need to police our tone to offer a sober academic perspective on Canadian copyright reform — as she advocated legal intervention to balance the interests of users, owners, and the normally forgotten creators in Canadian copyright law.

But the most interesting part in D’Agostino’s article was the implied idea of another balance: the balance between objectivity and indeterminacy; between precision and vagueness, which is not only a problem of Canadian copyright law, but of contemporary laws and policies as a whole.

The new Bill, she noted, is overly complex and full of legalese. Indeed. In my opinion, it should be awarded the “Québec’s-Legal-Framework-for-Information-Technology-Act Prize” as the most cumbersome piece of Canadian technology legislation I have read in a while. But not only Bill C-61. As she put, “[a]ll law is getting more complex”.

This indeed leads to a paradox. On the one hand, the law needs to be as precise as to provide us with reasons for action. “It doesn’t matter what the law says; if Canadians don’t understand it, then the law has little value”. On the other hand, the law cannot be as precise as to hinder technological change or to lag behind it. “The copyright reform process must continue”, while “[n]ew technologies and business models will continue to proliferate – challenging existing practices and copyright law yet again”.

Technological neutrality does not find a place in such universe. Between vagueness and precision, neutrality offers us no more than an illusory escape route. Attempts to pursue it are conspicuously self-defeating. In this regard, the Supreme Court of Canada has recently issued a quite peculiar decision in the Robertson case. In the case, the court confronted the right of a freelancer to object to the reproduction of her articles by The Globe and Mail, with regard both to a CD-ROM support and to an online database. Although invoking the principle of technological neutrality, the court denied the right of the appellant with regard to the CD-ROM reproduction, but affirmed it with regard to the online database.

In an article just published by the UOLTJ, Ottawa Prof Daniel Gervais notes the tension.

On peut aussi noter la tension qui existe entre, d’une part, l’insistance de la Cour, à bon droit par ailleurs, sur la notion de neutralité du support et, d’autre part, le transfert des articles sur CD-Rom et dans la base de données. En effet, si les différents supports sont égaux au sens de la Loi, ils ne sont pas techniquement égaux.

“In effect, if the different technological supports are equal in the sense of the Act, they are not technically equal”. But the problem is precisely to understand why they should be equal for the law whenever they are not technically equal. Why suppose that the law should treat with equality a universe with so plentiful variations?

Bill C-61 does not suffer from this same conflict. It comes with the unabashed intention to address the challenges posed by the Internet – in a way that not even the so-called WIPO “Internet” Treaties affirm they do – and has many technology-specific dispositions. Actually, any law inevitably has; but at least no illusions here. The problem is then the extent to which we should assume that their mere happening in the Internet warrants copyright relationships a more protectionist deference.

In some of its most extreme provisions (ss. 29.21(2) and 29.22(2)) the Bill grants to one of the parties the unrestrained power to define by contract what constitutes or not infringement with regard to works downloaded from the Internet by the other party. In a world in which these contractual relationships are the slaughter house to which we the sheep spontaneously walk on a daily basis – who truly reads all those contracts or give them some or any thoughts?; in a world in which big corporations use their networks of contracts as regulatory instruments that grant them even more power than many states have, to assign to these corporations the possibility to define what constitutes infringement or not by means of a contract is the most extreme measure that was yet to be taken.[1] That this is common in common law countries does not make this sensible or right.

Hence, it is very opportune that Canadian scholars are calling for an exquisite balance between objectivity and indeterminacy in Canadian copyright reform. Discussions on the precise extent to which specific technological concepts (e.g. the Internet) should prompt differently tailored responses by the state are as much needed as more abstract discussions on a balance between the interests of users, owners, and creators.

Most importantly, to adapt old legal responses to a new technological universe may not suffice. Copyright law is but a product of our imagination. We can imagine it differently. To begin with, why not include in the law some provisions with regard to alternative licensing regimes that are increasingly less an alternative but the very rule in the information environment? Why there is not a provision on commons-based peer production models of development? What about open access of works of authorship developed under the Crown?

In sum, a truly sober and balanced discussion must factor in all the particularities of the new technological (and societal) reality – even when this revolves the very structure of what we currently understand by copyright law. We need an open and thoughtful assessment of the extent to which different technological possibilities should prompt different responses by the state. A Thesean courage is demanded. To expunge the technological neutrality Minotaur from the Canadian copyright maze is the only way to move with sanity in a world with utterly complex variables. It is the only way to unify the now so fragmented interests of all sides in this debate around a tangible reality that we may call the public interest.

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[1] Binnie J had already hinted at possibilities like this in Théberge (see §54), the first case to arguably develop a Canadian equivalent for the first sale doctrine. Interestingly, the case had nothing to do with the Internet, but with posters and canvas. In a different way, the matter in Robertson also involved the boundaries of freedom of contract. The court understood that “[p]arties are, have been, and will continue to be, free to alter by contract the rights established by the Copyright Act“. But however critical one may be of the Supreme Court decision in that regard in Robertson, that is still better than a statute stating that parties are free to establish additional possibilities of infringement as it pleases them — whereas under the current Act at least those possibilities are circumscribed, in general, to those acts which, under the Act, only the owner has the right to engage in (s. 27(1)).