Coming to Terms with Copyright
IN THE PUBLIC INTEREST: THE FUTURE OF CANADIAN COPYRIGHT LAW, pp. 480-516, M. Geist, ed., Toronto, Irwin Law, 2005
37 Pages Posted: 11 Feb 2011
Date Written: 2005
It is time to begin re-thinking systematically the larger issue of copyright terms (preferably in the context of a larger systematic re-thinking of copyright). With some exceptions, the extent to which the copyright term is taken as sacrosanct is surprising. In my view, we need to not only shorten the term of copyright generally, but also to vary the terms of copyright as between different kinds of works according to the context of the right and the resource protected by copyright. Finally, we might consider strengthening these proposals with a registration requirement, especially for longer terms, putting some of the onus on creators themselves of identifying and protecting works of ongoing value.
What this article provides is a conceptual and philosophical structure, albeit skeletal, for copyright reform generally and for the reform of copyright terms in particular. The argument herein is not grounded in the particular context of term extension debates in the US, nor based on free speech considerations, which while important can lose their persuasive force in the face of property rights talk. It is also not grounded on technologically-driven imperatives. Rather, the argument is grounded on the general concepts of property and of copyright, and in the theoretical justifications for and history of copyright. I am of the mind that we need to tie the specific reforms back to a more general understanding of copyright. In this sense we must look back critically in order to re-assess how to move forward. Such a re-calibration would bring copyright protection back into line with its core justifications and history, balancing the rights of creators with the interests of maintaining a robust public domain. Perhaps ironically, addressing the term of copyright protection would also go a long way to solving some of the problems being created by new technologies respecting access for users and balancing the rights of creators and users (for example, technological protection measures, digital rights management). Such measures are weakening, if not completely obliterating the interests of users. That is, shorter terms of copyright rights might be seen as a counterbalance to technological advances that have served to make rights more absolute than they have been historically: the trade-off is a much shorter term for a stronger right vis-à-vis users.
Of course, one has to be realistic in the sense that given the structure of international copyright, and US and EU preponderance in IP policy matters, that this situation will not change overnight and certainly not in this round of Canadian reform. However, there are dissident voices around the world and especially in the US, and this is a time to begin thinking in Canada about copyright terms in a more coherent manner. It is my hope that Canada will become a leader in this necessary and I think, inevitable, discussion. What follows is an attempt to help frame that discussion, and provide some of the theoretical underpinnings from which that discussion can proceed.
Keywords: Copyright reform, copyright term, copyright theory
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