Conclusion

If one had to summarize the current state of copyright in Canada, from a creators’ perspective, the following over-arching observations emerge:

1. Canadian artists now function in a highly digitized global environment, which offers unprecedented creative opportunities, but also significant risks in terms of unauthorized copying and alteration of their works;
2. Canadian legislators have been conspicuously slow in modernizing the Copyright Act to address the impact of new technology, and have failed to fully assess the long-range implications of previous reforms;
3. The user-oriented exemptions added to the Act in 1997 have damaged the ability of creators to profit from their work, and may well contradict federal policies designed to encourage collective rights management;
4. A series of recent Supreme Court judgments has undermined creators’ rights, while providing additional legal heft to users’ rights;
5. The proliferation since 1997 of Canadian copyright collectives has created a costly administrative burden on rights holders. What’s more, due to legislative inaction, this sector still lacks the resources, both financial and legal, to extend its reach into digital licensing;
6. Efforts to introduce labour relations laws for artists, with mechanisms to protect their intellectual property, have been half-hearted, and appear to be utterly disconnected from the copyright reform process.
7. There’s a corrosive disconnect in public attitudes: most Canadians believe artists deserve to be paid for their work, yet there’s still widespread unauthorized copying – a contradiction that may be explained by the public’s suspicion that current copyright laws ultimately fail to benefit creators.

Taken together, these conditions force us to ask whether Canada’s copyright law is balanced in favour of creators or users. Are policy-makers attempting to attain some kind of equilibrium under the law or, alternatively, correct some perceived imbalance? “Balance,” after all, is a concept that buttresses much official deliberation about copyright reform in Ottawa. One of the “overarching objectives,” notes the Section 92 report, “[is] to recognize the balance between the legitimate interests of creators to be paid for the use of their works and the needs of users to have access to those works.”

As a policy objective, balance is a slippery and perhaps unattainable goal. And it is very much in the eyes of the beholder, as the saying goes. The pursuit of balance, in fact, raises as many problems as it purports to solve. Is balance measured in purely economic terms, or by some other yardstick – e.g., improving access to copyright work for certain individuals and institutions. If balance is the stated goal, moreover, how does the government satisfy itself that balance has been achieved? And are there alternative policy levers, outside copyright law, that could be deployed to provide such balance?

Consider the last question in relation to legislated exemptions. Ostensibly, most of the exemptions now in the Act are designed to provide individuals or institutions with some monetary and administrative relief in order to achieve a public good. Schools or institutions serving the blind need not pay royalties to make copies of certain works under certain circumstances, nor do they have to spend valuable time chasing after permissions. The stated goal is that such exemptions provide support for activities deemed to be valuable to society -- such as academic inquiry or the provision of materials for individuals with perceptual disabilities. Laudable ends, but the assumption that remains unexplored is why the onus is on individual creators to subsidize public policy? If the Canadian government determines that there is a national cultural benefit in, for example, providing drama teachers with free access to scripts for plays that can be performed in a classroom or school auditorium, should it not allocate funding directly to boards to offset the royalties owing the playwrights? Or put another way, should a Canadian playwright be held personally financially responsible for ensuring that Canadian school children have unfettered access to drama curriculum?

Such questions become increasingly bizarre if one tries to transpose these policy trade-offs onto other information technologies, such as software, or manufacturing sectors that rely on the exploitation of various categories of intellectual property. For instance, no health policy expert would dispute the assertion that the medical system would benefit if there were fewer cases of heart attacks and strokes. But do Canadian legislators seek to enact exemptions to the drug patent laws that would require pharmaceutical manufacturers to forego revenues on treatments that prevent such illnesses? The answer is obvious, as are the consequences of such logic.

There is one final dimension to the problem of balance, argues Normand Tamaro, and that has to do with the state of the “equilibrium” between creators and producers, who together comprise the copyright owners `faction’ in the intellectual property debates. This report began with the observation that creator and publisher interests are not parallel, although they have come to be seen as a unified whole in the push and pull process of copyright reform. If creators and publishers both played on the proverbial level playing field, we might be more accepting of this reductive characterization of copyright politics. But as this report has shown, creators are at a significant disadvantage in the relationship, and thus the reform agenda on the copyright owner side is more driven by the corporate needs of media conglomerates, textbook publishers and the entertainment industry. There’s no disputing that the digital issues which dominate the current agenda are critical to both creators and producers, but it’s hard to ignore the reality that the policy problems of immediate concern to individual creators – i.e., the combined impact of exemptions, and pivotal court rulings about moral rights, fair dealing and the copyright status of databases – have been largely overlooked.

Tamaro further argues that the very notion of balance in Canadian copyright law is built on a false construct -- the product of a highly flawed Federal Court ruling from 1954, in which the presiding judge overlooked existing jurisprudence and relied on a possibly plagiarized argument to declare the nascent Canadian cable industry exempt from copyright rules designed to protect creators. In a brief prepared for the CCC and DAMIC, Tamaro shows that the legal DNA of this judgment can be found in subsequent judicial and policy decisions -- the combined effect of which makes Canada regrettably unique in its pursuit of balance within a law intended specifically to protect one class of intellectual property -- authors ’rights. As Tamaro points out, the Supreme Court of Canada, no less, issued a decision in 2004 in which Justice Ian Binnie referred to the “limited nature” of intellectual property – a remarkable formulation, considering the central role of creativity and information in the development of Canadian society, and the lengths to which corporate copyright owners have gone to protect their intellectual property assets.

We are poised at a fleeting moment, between judicial decree and political edict. If Canadian artists, performers and writers wish to prevent Justice Binnie’s words from becoming a self-fulfilling prophecy, they now need to forcefully assert the case for individual creator rights in the current debate over copyright reform.