Saturday, September 5, 2009

Michael Geist on the principles of copyright reform

Michael Geist has an article (also here) in the Windsor Star in which he lays out four principles that should guide copyright reform:

(1) balance
(2) technological neutrality
(3) clarity
(4) flexibility

Geist's analysis of how these principles should apply in the drafting of a new copyright statute for Canada are for the most part thoughtful and sensible. But his article doesn't explore the implications of these principles as deeply as it might.

The principle of "balance" for example, if properly applied, would call for a reduction in the term of copyright in books from life+50 years to life+35 years or to an even shorter term. Canada's membership in the Berne Union means that it cannot unilaterally reduce the copyright term for books below life+50 years. But if international copyright agreements allow for shorter terms than Canada currently provides in works other than traditional books, Canada should consider reducing its term of copyright in such works. And nothing prevents the Canadian government from introducing proposals for a duration for traditional writings shorter than life+50 years in meetings of the international copyright councils of which it is a part.

Nor does Geist seem to appreciate that the third and fourth principles are to some extent incompatible with each other, flexibility sometimes coming at the expense of clarity. In the U.S. the law of fair use in copyright is very flexible. But precisely because it is flexible, it is hard to predict in advance whether any use, other than in the simplest cases, will be considered fair. The more the flexibility, the less is the clarity.

Technological neutrality might be a worthy goal, but it is not certain whether it can be achieved. When I read the discussions and debates over the U.S. Copyright Act of 1976, a statute that its drafters intended to be technologically neutral, I am struck by how limited the discussions are to the technological horizon of the time. Perhaps better adaptability would be achieved by planning for frequent revisions of the statute, rather than by attempting for an unachievable technological neutrality.

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