Thank you for having me here. For nearly 15 years, my research interest has been in systems of copyright, both contemporary and historical.
One of the challenges in dealing with copyright is that people tend to forget that it was designed to regulate industries. Because of an accident of vocabulary, it now includes individuals.
People also forget the baggage we have carried for 150 years, that our system was largely designed by other countries for their advantage. To the extent that we have successful writers, musicians, artists and publishers, those gains came despite the system, not because of it.
I would like to start by setting some definitions. What are we talking about?
The system of copyright is composed of two parts: there are rights of control and there are rights of use. Why do we have it? For a very long time, we had no purpose. Copyright was simply one of 29 responsibilities handed to the federal government in 1867, with no explanation attached. However, if we look at our multicultural roots—that is, the influences of both civil law and common law—we see a shared goal, and that is to protect the process of creativity. While our Supreme Court has operationalized this as seeking a balance between creators and users, it might be helpful to take one step back and simply think about this process and how we can enhance it. How do you assist individuals to maximize their creative potential? And from that, there is reasonable historical data to believe that larger social gains will follow.
I am drawing in particular from the work of Zorina Khan. She is an economist who explored American intellectual property policies early in the time of their nation building. The U.S. deviated from the IP norms of the day and instead focused on educating its people and creating a framework that encouraged everyone to enter the arena of creativity.
A part of that framework was the theft of other nations’ work, and to be clear, I am not recommending doing that, but we could adopt the best aspect of current American policy, which is their structure of fair use. It would give leeway for new ideas to take form.
A guest at one of your earlier meetings alluded to some challenges faced with fair use, or fair use in the States, and he quoted Lawrence Lessig as saying that fair use was simply the right to hire a lawyer. I want to emphasize that the Unites States made great productive use of fair use before the better part of the 20th century, creating multi-billion-dollar industries, but towards the end of the century they did run into some troubles. Their court started treating fair use as merely a response to market failure.
Fortunately, the Canadian judiciary has already ensured that Canada can avoid such a a self-defeating approach. Creativity is a cumulative affair; whether we are talking about books, music, software, medicines or a free press, creativity relies on exposure to and use of prior work. Some uses must remain above the cycle of permission and payment if creativity is to be sustainable.
In 2012 we came up short on fair use, but one pleasant addition stood out: section 29.21, which is commonly known as the YouTube or the mash-up exception. I would have called it the “creativity exception”. It gives future Canadian creators some reassurance that their government does not wish them to be prosecuted for doing what Canada needs them to do, which is to hone their creative skills.
We need our next generations to be at their best in order to address the intractable problems that we are being left for them to solve. Drawing from the combined wisdom of Julie Cohen and the late Oliver Sacks, we know that it is important for individuals to play with whatever content they are interested in, to cultivate a capacity to see something that others cannot, and to build the curiosity and determination that we hope will carry them into groundbreaking intellectual effort across all disciplines. Much is being made of our innovation agenda, but we will not get innovation simply for the asking; we need to nurture it.
Regardless of whether we have strictly enumerated exceptions or a more flexible condition of fair use, we cannot gain the fullest potential on either unless we adjust the current language on digital locks. This committee has been asked repeatedly to do more to support Canadian writers and Canadian publishers. This is a worthy goal, but I hope that the proposed solution will not include billing students for materials already paid for, or, worse, billing students for materials that are not prescribed at all.
Moreover, if we want to target Canadian operations, copyright is not an effective means. More money will leave the country than will stay in it. As I wrote in my brief, “copyright is a blunt instrument; it cannot distinguish between literary superstars and novice writers, between fostering a homegrown operation and serving an international conglomerate, or between writing for an audience and writing for financial gain.”
As I mentioned at the start, our act draws from both our common law and civil law ancestry. The Copyright Act has long been recognized as being bi-jural; we have vivid evidence of both our founding nations in it. However, the third is present. Indigenous paradigms about creative endeavour and property are implicit to the system of copyright as we practice it today. Acknowledging this will not solve the problems encountered by indigenous communities with respect to protecting their intellectual property, but given the objectives of the Truth and Reconciliation Commission, we ought to recognize that the Copyright Act is tri-jural.
I would like to close simply by acknowledging that we have gathered on the lands of the Algonquin people.
Thank you.