Meera Nair

more American than America itself

In Posts on March 1, 2012 at 9:45 pm

On Tuesday Michael Geist described a list of nations that chose a more lenient approach to digital locks than our current government has proposed with Bill C-11. On Wednesday he followed with a description of the wishlist of the Canadian Independent Music Association (CIMA) with regards to that same bill. Geist writes: “the music industry demands make SOPA look like some minor tinkering with the law.”

Perhaps not surprisingly, CIMA is not pleased with the proposed expansion of fair dealing to include parody and satire. In their submission concerning Bill C-11, they write: “It is unclear how ‘parody or satire’ made for commercial purposes will be treated under this exception, nor is it clear who would retain ownership for this material.”

Commercial undertakings have legitimate recourse to fair dealing. Success or failure will rest upon the outcome of the multi-facetted framework of inquiry set by the Supreme Court of Canada in 2004, via CCH Canadian. That this may be ‘unclear’ is simply a consequence of the fact that parody and satire are not yet exceptions in Canadian law and thus there are no past cases to refer to. This is hardly a good reason to deny the introduction of the exceptions themselves. With respect to CIMA’s second point, fair dealing is not a mandated transfer of copyright. The creator who brings a parody or satire to fruition, through the use of existing protected material, has copyright in the new creation. The copyright holder of the source material continues to enjoy the original privilege.

CIMA’s vision of what Canadian copyright law should look like far exceeds American demands. Even the original content of Bill C-11 was in excess of American treatment of digital locks. Together they conjure up a dreary reminder of Canada’s first Prime Minister’s efforts to create in Canada something more than just an extension of Britain on this side of the Atlantic. Sir John A. Macdonald envisioned a nation “more British than Britain itself.” Macdonald’s protectionist policies were in aid of promoting trade with Britain and protecting the institutions that had developed in the wake of the fur trade.* Then, as perhaps now, the focus was on exploiting Canada’s natural resources.

Yet, in this millennium, there is another dimension of American policy that is worth emulating. In Geist’s listing of countries, he also reminds us that Israel has avoided the issue of digital locks entirely. This may not seem a nod to American policy. But, contemporary Israeli policy decisions bear a striking resemblance to American intellectual property policies of its antebellum days. Via a concerted effort to democratize creativity, the United States made a remarkable journey from a predominantly agrarian society to a world leader in intellectual development in less than one century. Israel seems bent on a similar journey; in 2007 it not only avoided introducing protection of digital locks into domestic law but expanded the rigidity of fair dealing into the elasticity of fair use.  What struck me was the willingness of Israeli legislators to take the best that American law can offer and avoid the worst.

Canadian and Israeli copyright development make for intriguing comparison. In part because of a common history between the two countries; each stemmed from a British antecedent, came under the closer influence of the United States, and kept a bi-jural ancestry of copyright law. And both countries had a “fair use moment” where their Supreme Courts introduced a multi-facetted inquiry for fair dealing, similar to that followed in American law for fair use.  And, under the circumstances of each case, the Justices sought to limit the influence of commercial concern. Notably, the Israeli Supreme Court stated:

The use may be found to be fair in light of its purpose and character, even if those are commercially oriented, given that the use is found to promote important social values.… This is a product of our modern world, in which most of the activities that promote social values cannot be disconnected from financial motives. Prohibiting any commercial use of a protected work will discourage activities that society would have liked to encourage.**

With multiple Supreme Court decisions due this spring, perhaps Canada will see further development of fair dealing, to the benefit of commercial use of protected work.

I am enjoying comparing Canadian and Israeli developments in copyright; a  working paper is available through the Program on Information Justice and Intellectual Property at the Washington College of Law at American University. Comments on the paper would be most welcome.

* David Ralph Spencer, “Rhymes and Reasons: Canadian Victorian Labour Journalism and the Oral Tradition,” in Journal of Communication Inquiry (1992).

** CA 2687/92 Geva v. Walt Disney Company 48(1) PD 251 [1993]

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