Meera Nair

Fauteux Hall and Rideau Hall

In Posts on October 13, 2010 at 9:25 am

The Centre for Law, Technology and Society at the University of Ottawa is hosting a book launch tomorrow. The event is free and open to the public – see here for details. This marks the publication of a new book on copyright, From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda. Published by Irwin Law, the book will be available for purchase or free download. The collection of papers, edited by Michael Geist, provides a multi-faceted examination of Bill C32, together with the wider context of copyright in society and the opportunity for Canada to develop lasting policies that will sustain creative effort. It was a privilege to be invited to contribute; I would like to thank Michael Geist for his initiative and for his expert management of this project.

Another Ottawa event of note was the recent installation of David Johnston as our Governor General. His Excellency began his career in the field of law and concluded with a lengthy tenure as president of the University of Waterloo. His specialties included securities regulation, information technology and corporate law; he has served in private and public endeavors, chaired the federal government’s Information Highway Advisory Council, and moderated political party leaders’ debates more than once. For a more complete list of his extensive achievements, see here.

In an interview that aired this past weekend, Peter Mansbridge remarked on the string of ones and zeros across the bottom of the Governor General’s coat of arms. His Excellency confirmed his lifelong interest in science and technology, and commented that the law is slow to respond to technology. He then spoke with enthusiasm of the potential for learning that contemporary communication technology offers. And he drew attention to the candle at the very top of his coat of arms: “The candle is learning…” His Excellency explained how Thomas Jefferson had likened knowledge to the light of a candle – that using a lit candle to light another does not diminish the light of the source.

That passage (see below) by Jefferson was part of a larger discussion; namely, Jefferson’s discomfort with the association of natural rights to ownership of creative effort. Although Jefferson believed in the legitimacy of property rights, including those surrounding intellectual effort, he was wary of using monopoly rights as the means of promoting creative development. With respect to the proposed United States Constitution, in a letter dated to 1788, Jefferson wrote to James Madison arguing that they should abolish monopolies: “… saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time … ; but the benefit of even limited monopolies is too doubtful to be opposed to that of their general suppression.”*

The citizens of the new republic were fully aware of the abuses perpetrated by Britain’s mercantile system, supported as it was by monopolies granted by the Crown. Yet while monopoly by patent or copyright was not the only option presented as a means of giving incentive, it appeared as the best solution. The issue of cost was relevant to the new government burdened with the debts of the Revolutionary War. Proposals that offered land (or other premiums) were considered too expensive. And the offering of honorary titles held no appeal in a realm where all men were created equal.

But the United States Constitution contains a clear indication of Jefferson’s discomfort. As noted in my last post, intellectual property receives its justification from Article One, Section Eight, Clause Eight: “To promote the Progress of Science and the Useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” If one reads all of Section Eight, it is evident that this is the only clause where the purpose of the grant of Congressional power is circumscribed by a specific course of action, that is, the granting of limited rights.

Here is the section of Jefferson’s letter to Isaac McPherson, dated to 1813:

Stable [property ownership] is a gift of social law … If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, seems to have been peculiarly and benevolently designed by nature.

Perhaps then the lesson is that social law should not unduly restrict a flow which nature has already designed. And, given the inherent delay in adapting a legal regime to respond intelligently to new technology, it is best to design systems of law that can accommodate old and potentially new technology.

*The University of Virginia has an extensive collection of Jefferson’s papers, and many writings are publicly available in digital form.

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