Meera Nair

a new chapter

In Posts on May 27, 2012 at 7:25 pm

Michael Geist’s column in the Toronto Star signals the start of a new chapter for Canada and copyright. He reminds us that C11 has some features that bode well for creativity and innovation. But the mood of the article is sombre as Geist also provides a record of how much better the law could have been.

This was an opportunity for Canada to shine on the international copyright stage – Canada could have been seen as looking forward in the digital age. Albeit purely due to three consecutive minority governments, Canadians enjoyed the wider range of copyright analysis that only time could offer. To bring into law language that might have been crafted in 1998 seems at best illogical, at worst absurd. But behind the seeming lack of logic are the usual explanations: a Canadian government’s desire to please the United States, the power of collective organizations to ensure the primacy of their views, and the continued feint that copyright is the means to ensure success for individual Canadian creators.

The fact is: the presence of the mechanism of copyright does not guarantee income to any creator. A work must be desired before it might be transacted. And the outcome of a transaction is not always evenly distributed between all parties; creators must contend with publishers, homegrown companies must compete with multi-national firms, and new artists must always face the establishment. Success is contingent on many factors including education, opportunity, stature, industry and sheer luck.

Fortunately, some comfort can be had by considering past Canadian cultural policy development. Ryan Edwardson’s Canadian Content: Culture and Quest for Nationhood is good reading – he details the various missteps through the twentieth century that affected the development of Canadian cultural industries. While those engaged in contemporary industries will remind me that challenges abound today, from the vantage point of 2012 we can point to many twentieth century Canadian success stories in literature, music, film and art. Support could have been better, but Canada soldiers on.

Last week I had the pleasure of attending an IP Scholars Workshop, hosted by the University of Ottawa’s Centre for Law, Technology and Society. The theme was Multidisciplinary Approaches to Intellectual Property Law –  it provided a much needed clearing of cobwebs for me. My thanks to the organizers Mistrale Goudreau, Madelaine Saginur and Teresa Scassa – the conference spilled over with good conversation, exciting ideas and wonderful food. All in all, the event reminded me that copyright in Canada is much bigger than C11 and Access Copyright.

My contribution to the workshop was based on Harold Innis and his exploration of law, rooted as that was in political economy and communication. Among Innis’ writings is a remark that cries out to fair dealing: Law was found, not made. We find fair dealing, we do not make it. That the law is not yet designed to protect existing creative and fair practices is a disappointment but that does not refute the fairness of those practices. Likewise, despite the exhortations of Access Copyright to a blanket licensing plan that effectively removes fair dealing by contract, fair dealing is practiced in post-secondary institutions on a daily basis. The work ahead is to ensure that people know it.

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