Canada needs a new Copyright Act.

[ILLUSTRATION OMITTED]

The Canadian Copyright Act (www.canlii.org/ca/ sta/c-42) is a federal law that applies across the country and fits into many transnational agreements. It grants creators many transferable property-like rights over original works including literary, dramatic, musical, artistic, and certain other intellectual creations. Although these rights are far-reaching, they do not offer a complete monopoly over copyrighted works.

In fact, the Copyright Act and subsequent court rulings have identified certain opposing rights, such as user rights, that allow others to avail themselves of works without seeking permission. For example, fair dealing exceptions allow for private study, research, criticism, review, and news reporting, while other specific exceptions cover additional cases including some educational uses.

Copyright issues seem so complex because they encompass two very important goals. On the one hand, creators must be recognized for their labours and receive appropriate economic compensation. This is achieved by the property-like monopoly on the economic exploitation of works. On the other hand, a free and democratic society must be able to discuss, participate in, and share in our common culture and knowledge in a fair and equitable manner. Again, fair dealing and other user rights allow for this. What is fair is often a matter of opinion, and a strong consensus is sometimes difficult to establish, especially since social uses of copyrighted works may dilute the potency of certain business models. To make matters worse, changes in information technology have brought new stakeholders to the copyright debate.

In the pre-Internet era, copyright legislation was designed as an industrial application: creators would assign or license rights to corporations by contract. The corporations became rights-holders which could trade or sell rights. Novels were thus published, eventually adapted to movies, and perhaps broadcast on television. Those concerned were media companies, broadcasters, and creators, who themselves could be seen as professionals practicing a particular trade such as freelance writing. The layperson or consumer was rarely concerned with copyright issues apart from purchasing books or records or watching TV.

Of course, the advent of networked digital environments changed this balance. Said bluntly, an individual can now easily be capable of being a creator, a broadcaster, or a publisher, as well as a simple consumer of his or her own creations and the copyrighted content of others. This is self-evident with music. It is possible to not only trade songs with friends with file sharing software, but also to use simple software to transform these into personal versions and send them around the world. While many voices have spoken up to decry or celebrate this new reality, one thing is certain: the foundations of copyright-based industries have been shaken beyond recognition.

Of course, corporations have tried to exert pressure on governments to modernize copyright legislation to ensure the stability of their operations. Most notably, they successfully lobbied the World Intellectual Property Organization (WIPO) in 1996 to enact two treaties to address digital uses of copyrighted works. These treaties included new categories of rights such as the "making available right" to give only rights-holders the power to post works online, and "anti-circumvention rights" to render illegal, preferably as a criminal offence, tampering with digital encryption and other "technological protection measures" (TPM). This has led to the Digital Millennium Copyright Act (DMCA) in the United States and a European Directive. Canada has yet to substantially modify its Copyright Act.

Following the WIPO Internet treaties, Canada amended its legislation in 1997 to provide some quick fixes and pledged to embark on national consultations to determine the best course of action for a full copyright reform. The goal was to have most issues covered within five years, but bitter squabbling, new business practices, and minority governments with more urgent matters to settle have left copyright reform behind. Again, a consensus is difficult to identify.

Well-established creators and major media companies stand to lose the most from the potential of new technologies. Because they are the target of digital piracy, they usually clamour for stronger copyrights such as a duration beyond 50 years after the death of an author, the ratification of the WIPO Internet Treaties, and the diminishment of user rights such as the imposition of constraints on fair dealing.

The goal of these heavy-hitters is to create a regime where digital devices are crippled by legal or contractual means, enforced by technological measures, to emulate the pre-Internet golden days. Individuals could only copy a song from the Internet to a music player if they have obtained this right, usually for a fee. It is this regime that best guarantees the survival of their business models, although civil libertarians and technologists have decried this approach. The ultimate test, it seems, rests on the shoulders of consumers if they buy into this approach--quite literally.

Conversely, creators and media companies, especially ones operating at the margins, have explored new technologies as a way to promote their works or find new markets. For example, musicians and authors, including renowned ones, post their creations for free and invite fans to purchase merchandise or attend shows. This has attracted much attention, even prompting some large and established corporations to test these new business models.

Similarly, the trend of user-generated content, also called Web 2.0, has yielded an unwavering tide of content available for free. While one could question the quality of these cultural products, their popularity and impact on our daily digital lives are now commonplace. As well, the growing trend by large libraries and corporations like Google to digitize works that are out-of-copyright or are in the public domain also provides pressure to the approach retained by large media companies. These are part of our cultural heritage and are, after all, free alternatives to new content.

It is important to understand that copyright applies to works in digital format. What is unclear is how some provisions are applied to these new categories of works and uses. Because copyright exists to foster fair markets of cultural goods, how individuals consume works in the digital arena is almost as important, if not more, to copyright reform as any claim by rights-holders. You may want to sell a proverbial digital widget in a particular manner, but you cannot force a consumer to adhere to your terms if there are alternatives.

Certain consumer groups have taken sides in the copyright reform debate. Unbeknown to many, Canadian libraries, particularly in universities, have begun to purchase vast quantities of digital works. This includes not only academic writings bur also music, digitized versions of paintings, and sound recordings. It is not surprising, then, that librarians, university professors, and administrators have been actively following the reform process and have proposed their points of view.

Consumer groups have followed suit. Most notably, many questions remain concerning contract law and consumer protection. The consumption of digital works such as software or music involves the adherence to contracts which have been unilaterally determined by media corporations. These are usually complex, long (if not indecipherable to the layperson), far-reaching, and include non-optional negotiating terms. A similar worry deals with Internet network traffic management strategies adhered to by certain telecommunications firms, such as Bell Canada, for which the CRTC is currently seeking comments. The power of a single individual in these cases is rather theoretical.

It seems ironic that consumers and creators do not seek to join hands in the copyright reform debate. In fact, creators are a very special kind of consumer of copyrighted works. How could one aspire to become a writer without consuming, deconstructing, discussing, quoting, and learning about contemporary and more ancient texts? The same holds true for all the categories of works protected by copyright.

In that sense, the biggest threat to creators, rights-holders, and consumers alike stems from an unbalanced approach to copyright reform. On the one hand, property rights are the recognized method to ensure the emergence of a market in cultural goods. On the other hand, this property right cannot prohibit social uses of protected works for education, news reporting, and criticism, all of which are required in a free and democratic society.

Olivier Charbonneau is an Associate Librarian at Concordia University in Montreal, PQ. www.culturelibre.ca