OPINION
14 Obiter Dicta
Something Olde, Something New...
Has the Copyright Act become outdated in a new digital era?
heather pringle › layout editor
O
nce upon a time, it was commonplace for
consumers to pop into their local shops and
browse through collections of used records,
CDs, movies, books, or whatever other media
were available for purchase. Students would resell
their used textbooks to get back a portion of the initial price paid for them, and Nirvana fans could pick
up a used copy of In Utero without feeling like a sellout for paying the full twenty-some-odd dollars for it.
All the while, original copyright holders would benefit from the exposure their works gained by increased
access to consumers and the public. In this respect,
secondary markets provide economic benefits to both
owners and users, furthering public policies toward
ensuring public access to creative works, as well as
respecting the property rights that are associated
with these tangible works. In their traditional form,
in so far as they facilitate the distribution of tangible
goods for resale, secondary markets operate to fulfill
the underlying principle of intellectual property law:
balancing the competing interests between content
creators, users, and the public domain.
It might seem like a foregone conclusion to the
younger generation today that this same model ought
to be applied within today’s digital environment.
History has shown that copyright law has continually adapted, either judicially or through legislation,
to changes in technology from the printing press, to
radio and broadcast, to photocopiers. Why should
the internet and digitization prove to be any different? Rather than lending a friend their dog-eared
and highlighted copy of last year’s biology textbook,
current users might simply transfer the e-book to a
friend’s iPad or Kindle instead. However, given the
current state of copyright law, these users might be
shocked to find that while lending the physical textbook is permissible, transferring a digital version of
that same textbook would leave them liable for copyright infringement.
Traditional understandings of owning a physical copy of a creative work generally include such
rights as unlimited use and the ability to transfer or
d ispose of the
copy without the
copyright owner’s authori zation. These rights
a re shaped, i n
part, by the conventional understandings that society holds about
the ownership of physical property. It has been said
that copyright law does not so much expressly build
in such incidents of copy ownership, as it accepts and
assumes such incidents as given. In other words,
the rights associated with tangible objects have
been defined by laws relating to personal property,
with copyright law merely imposing a limited set of
restrictions. However, the bundle of rights associated
with digital copies is currently not synonymous with
those attributed to physical copies. Where owners of
tangible objects hold rights that stem from a clear separation of the physical property from the intellectual
property, owners of digital works appear to have very
little rights at all in the absence of such a separation.
Justifications for this distinction should be based on
policy considerations and not left merely as the result
of a changing technology. The fact that a copy takes
on a digital form should not, by itself, prevent it from
being viewed as personal property in the same way as
a tangible object.
Users have developed a set of expectations regarding digital works that derives from what they have
already become accustomed to from owning tangible
forms of creative works. The majority of users have a
legitimate interest, not only in simply having access
to a wide variety of creative works at low cost, but also
in being able to
use, manipulate,
and share those
works so as to be
able to derive new
meaning.
Where
the
beliefs held by users about the rights they have in
relation to digital works are in conflict with the established legislative framework, this should lead to a
re-evaluation of the allocation of those user rights.
To the extent that copyright law departs from the
common understanding of digital copy ownership,
the enforcement costs will potentially be quite high.
Looking to the prevailing attitude among younger
generations of users shows an absence of social norms
that deter end-user infringements with respect to
digital copies. In order to avoid a pervasive disrespect for the law, Canada’s copyright policies ought
to better reflect the conventional understanding that
users hold about owning digital works. Where copyright respects this understanding, it has the potential to facilitate the development of a standard default
bundle of rights associated with digital copies and
lower enforcement costs.
At the current moment, any attempts to bring the
realities of a digital environment in line with copyright law’s objectives are hampered by two general
obstacles: those relating to the current state of technology and those relating to the current state of the
law. Although, it could be said that the legal obstacles
are merely a consequence of current technological
limitations and therefore any efforts to find solutions
that address the current state of technology would
likely resolve the legal challenges as a result. In other
words, the problems in realizing a workable framework that provides users the right to dispose of digital
works are a matter “of statutory interpretation mixed
with a technical question of how a digital transfer is
actually accomplished.” With rapid development in
the state of technology, it is likely only a matter of
time before this issue will reach a point where it must
be addressed. In fact, both Apple and Amazon have
already applied for patent protection on content management systems that would facilitate the resale of
digital works. In addition, ReDigi was also recently
granted patent protection for a similar management
system that includes a method for “atomic transactions” – a cloud-based system that is able to perform
instantaneous transfers with