Copyright Reform in the 21st Century: Adding Privacy Considerations into the Normative Mix

Abstract

The new technology of the ‘Digital Age’ has led to the creation of potentially new copyrightable forms of works and new methods of distribution that do not automatically fit within existing paradigms based on a hard-goods world. As a result, copyright reform efforts are underway in jurisdictions as diverse as Australia, China, New Zealand, Singapore, South Korea, the European Union (EU), Hong Kong, Japan, Canada and the United States. To avoid the mistakes of the past, and create reforms whose effectiveness survives more than a few years, we must consider a broader array of normative inputs, including, critically the inter-relationship between copyright and personal and data privacy. In the 21st Century such privacy concerns are no longer adjuncts to issues of copyright protection but instead increasingly impact the scope and effectiveness of such protection. Using examples from the United States, Canada, the European Union and the Asia Pacific, I explore the impact of privacy considerations on such diverse issues as the author/subject dichotomy, fair use/fair dealing, digital enforcement mechanisms, including notice and takedown regimes, anticircumvention protections, database and other data collections, and distributional relief, including injunctions and suggest the shape that such reforms might take. Adding privacy concerns to copyright reformation considerations will not simplify the process. But the resulting normative framework could provide a copyright regime that not only provides a balance more in concert with the social justice and access to information/culture concerns but also remains viable regardless of what the next technological revolution may bring.

Keywords: Copyright, Privacy, Fair Use/Fair Dealing, Comparative Copyright, Copyright Reform, Digital Reform, Internet Law, Access to Information, Data Privacy, International Law Reform Processes, Digital Enforcement, Notice and Takedown, Sexting, Drones and Surveillance, DMCA, TPMs

JEL Classification: K00, K29, K33, K 34, K38, K42