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CAUT Bulletin Archives

May 2008

Comprehensive Look at How Copyright Laws Affect Canadians

By Jay Rahn

Canadian Copyright: A Citizen’s Guide

Laura J. Murray & Samuel E. Trosow. Toronto: Between the Lines, 2007; 224 pp; ISBN 978-1-897071-30-4, paper $24.95 CA.
According to Article 27 of the United Nations Universal Declaration of Human Rights (1948), “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits,” and “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

As professors and librarians, CAUT members have a stake in these values, because our jobs involve producing and disseminating scientific, literary and artistic works so that our peers, our students and our fellow citizens can enjoy and share in their advancement and benefits.

As academics, we should be grateful to Laura Murray and Samuel Trosow for their book on Canadian Copyright, as they provide the first comprehensive account of ways in which intellectual property law affects our work as Canadian users and creators of intellectual property.

In refreshing contrast to previous treatments intended for non-lawyers, Murray and Trosow distinguish between, on one hand, the rights of users and creators, and on the other, financial motivations of corporations and such risk-averse institutions as university administrations. A related theme of their survey is the marked difference between the public good and the narrower concerns of making and saving money.

Chief among the specifically Canadian principles of copyright is “fair dealing” — briefly, the right to copy for the purpose of research, criticism, review, news reporting, and private study. As the authors emphasize, the 2004 Supreme Court decision in CCH Canadian Ltd. vs. the Law Society of Upper Canada has established fair dealing as a robust basis for Canadian users’ rights. Also of importance to Canadian academics has been SOCAN vs. CAIP, which saves such Internet service providers as universities from liability for the content of intellectual property that might pass through them.

As well, Murray and Trosow detail how existing Canadian copyright law protects creators’ moral rights, e.g., effects that distortion or lack of attribution in copies of their works might have on their professional reputations. The authors also show how, in an effort to share and advance their work more directly with users, Canadian creators have increasingly bypassed corporate gatekeepers and profit-takers through Creative Commons licenses, Open Source programming and Open Access publications. Nonetheless, such user- and creator-friendly resources are not the whole story of Canadian copyright.

At present, Canadian users and creators have no explicit protection from frivolous lawsuits by deep-pocketed plaintiffs. Crown copyright, a Canadian anomaly among developed countries, constrains the use of government-published materials by the very taxpayers who have already paid for their generation. Moreover, as Murray and Trosow indicate, such international treaties as NAFTA, the WTO’s TRIPS, and the WIPO agreements would constrain users and creators, as would recent and ongoing attempts at copyright reform by the federal government.

In particular, the authors detail how Canada’s current copyright law comprises a bewildering thicket of exceptions concerning so-called “educational uses” — a tangled web of anomalies that would have been complicated even further by Bill C-60, which fortunately was abandoned when the Liberal government fell in 2005.

Even more confusing, especially in a digital age of multimedia communication, are the differing ways in which Canadian copyright law treats works of literature, film, music, visual art and design. Further, as the authors reveal, the termination of copyright is handled so oddly in current Canadian law that an unpublished work entered the public domain Dec. 31, 2003 if its author died Dec. 31, 1948, but such a work will not be free from copyright constraint until Dec. 31, 2049 if the author died on the next day: Jan. 1, 1949.

Fortunately, Murray and Trosow guide the reader through such murky waters with clarity, grace and good humour. Written concisely, any of the book’s brief chapters could be reasonably assigned to undergraduates in several fields, and the whole book should be read all Canadian academics.

To be sure, Canadian copyright law can change quickly, as shown by the last major round of amendments in 1997 and the case of CCH vs. LSUC in 2004. All the same, Murray and Trosow’s book should remain valuable for years to come and no doubt will see a revised edition if there is major new legislation.

One of the book’s great strengths is its emphasis on longstanding traditions that have shaped, and will continue to shape, Canadians’ understanding of intellectual property — not only traditions of the UK, France and the United States, but also cultural practices of First Nations.

Within these frameworks, the authors’ focus on enduring principles not only illuminates their more detailed discussions of case law but also should provide the reader with a firm basis on which to ask intelligent questions about Canadian intellectual property. For, as Murray and Trosow conclude, “Copyright, like other law, is too important to be left to lawyers, politicians and lobbyists.”

Jay Rahn is a professor of music at York University.