Technological Neutrality: (Pre)Serving the Purposes of Copyright Law

Michael Geist (ed.), The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright (Ottawa: University of Ottawa Press, 2013)

Osgoode Hall Law School Legal Studies Research Paper No. 28/2014

38 Pages Posted: 25 May 2014 Last revised: 26 Jul 2015

See all articles by Carys J. Craig

Carys J. Craig

Osgoode Hall Law School, York University, Toronto

Date Written: 2013

Abstract

In the realm of law, neutrality is widely hailed as a fundamental principle of fairness, justice and equity; it is also, however, widely criticized as a myth that too often obscures the inevitable reality of perspective, interest or agenda.The principle of technological neutrality, recently articulated by the Supreme Court of Canada when applying copyright law to online activities, seems similarly fundamental in the copyright realm — and equally mythical. In what is now dubbed the Supreme Court’s “Copyright Pentalogy” — five copyright judgments released concurrently by the Court in June 2012 — the unprecedented importance accorded by the Court to the principle of technological neutrality is clear; what remains unclear is precisely what “technological neutrality” means, why it matters, and whether or how it can (or should) ever be attained. This chapter considers the significance of the principle and its potential to guide the future development of copyright law and policy in Canada. Rather than a limited principle of formal non-discrimination between technologies, I argue that technological neutrality must be conceived in a functional sense, shaping copyright norms to produce a substantively equivalent effect across technologies, with a view to preserving the copyright balance in the digital realm.

Keywords: Canadian Copyright Policy, Copyright Law, Technological Neutrality

JEL Classification: K10, K21

Suggested Citation

Craig, Carys J., Technological Neutrality: (Pre)Serving the Purposes of Copyright Law (2013). Michael Geist (ed.), The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright (Ottawa: University of Ottawa Press, 2013), Osgoode Hall Law School Legal Studies Research Paper No. 28/2014, Available at SSRN: https://ssrn.com/abstract=2437409

Carys J. Craig (Contact Author)

Osgoode Hall Law School, York University, Toronto ( email )

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Toronto, Ontario M3J 1P3
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416 736 5189 (Phone)
416 736 5736 (Fax)

HOME PAGE: http://www.osgoode.yorku.ca

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