No more pencils, no more books...

Last Thursday RMCP officers execute a raid in downtown Montreal, arresting 13 people and seizing illegal goods worth approximately $540 000. Those arrested face fines up to $1 million dollars or 5 years in jail.

I know what you're asking, "Was it drugs? Was it guns?" In truth it was neither, it was photocopied university textbooks ( http://www.cbc.ca/canada/montreal/story/2011/01/20/textbook-rcmp-raids.html ) While I understand that the Canadian Copyright Act is designed in part to protect the works of authors by granting them exclusive proprietary rights, this seems like a bit of a stretch from those laudable policy objectives. Do the university presses who publish the textbooks that students are required to buy truly need such vigorous protection?

At this point, it is also worth that the copyright framework was also designed to meet other policy goals, like the dissemination of knowledge and public education. Although education doesn't grant students a carte-blanche to infringe upon the copyright of others, it does raise the point that a copyright regime needs to balance the interest of title holders and users. That the government's latest attempt at copyright reform (Bill C-32) extends fair dealing exception for the purposes of education is indicative of the ongoing need to balance competing interests.

The biggest issue, however, is not the formal rights that the law grants but rather how such rights are exercised and enforced in practice. The vast majority of consumers are unclear as to what current uses are permissible under the fair dealing provisions. Moreover, fair dealing is a defense rather than a right, meaning that you have to wait until someone sues you for infringement to invoke the legal protections the law provides. This less than even playing field perpetuates the current imbalance between copyright holders and users in Canadian copyright law. Maybe it's time to rethink things...

There's Always Hope!

Last week marked the end of a long standing legal battle between the Associated Press and artist Shepard Fairey over the latter's "Hope" poster of President Obama. Although neither side was willing to concede its legal position, the fact that they choose to settle rather than let the courts decide says a lot about the current state of copyright law. Simply put, no one really knows where they stand.

Copyright laws were initially designed to protect every "original" work that constitutes an "expression". The statutory definition is difficulty applied, however, in cases like that of Fairey & AP, where it is unclear whether a subsequent work is "transformative" (i.e. permissible) or merely derivative (i.e. infringing).

As such, the courts have often employed the notion of creativity to differentiate between works that merit protection and those that don't. Much like beauty, however, creativity is in the eye of the beholder and thus far has produced an inconsistent body of case law depending on the judges' artistic preference.

In light of all this uncertainty, the choice of Fairey & the AP to cut their losses, split the profits and move on makes a lot of sense. What's worrying is the growing incapacity of the current copyright regime to address this type of issue in a way that offers practical guidance to those involved. Maybe it's time to rethink things...