How Virtue Ethics Might Help Erase C-32's Conceptual Incoherence
FROM "RADICAL EXTREMISM" TO "BALANCED COPYRIGHT": CANADIAN COPYRIGHT AND THE DIGITAL AGENDA, pp. 309-340, M. Geist, ed., Toronto, Irwin Law, 2010
32 Pages Posted: 11 Feb 2011
Date Written: 2010
The proposed changes to the Canadian Copyright Act set out in Bill C-32 illuminate the conceptual incoherence of what has come to be commonly known as "copyright plus" or "paracopyright". In terms of copyright reform, the new provisions in C-32 seek to strike a balance between the interests of right-holders and the interests of users. A number of the proposed changes are welcome, and reflect the legitimate – or at least what ought to be the legitimate – expectations of copyright-holders and users. The non-copyright aspects of the Bill – the protection of digital locks, for example – have their grounding in other normative paradigms and are more problematic when juxtaposed against the traditional copyright provisions contained in the Bill and in the rest of the Copyright Act. They represent a serious conceptual flaw or incoherence in the Bill. This central conceptual flaw could overwhelm the copyright balances struck in the other parts of C-32, in Canadian jurisprudence, and in copyright theory and history generally.
Others have and will detail these problems more carefully in this collection and elsewhere; I need not do that in this essay. Rather, I will argue how the proposed changes might be able to function, notwithstanding the flagrant, fundamental flaw. This potential operability, or, more accurately, co-habitation, depends not on the following of the explicit text of a revised Act, but rather on the reasonableness and fairness on the part of copyright users and right-holders in the particular context of the protected work that they are dealing with (i.e., the nature of the rights and the nature of the object of copyright). This position might be labeled a "virtue-ethics" approach to C-32. I am not unrealistic, however. If right-holders in particular are not reasonable about the exercise of their rights under C-32, any promise that C-32 might have for achieving a sense of normative balance will be overwhelmed. The only hope for C-32 – short of legislative amendment – is that an informal normativity based on virtue might somehow emerge to harmonize the incoherence left in place by the formal normativity of C-32.
Keywords: copyright, digital copyright, digital locks, technological protection measures, fair use, fair dealing, virtue ethics, copyright reform, DMCA
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