Copyright or Copyleft ?

Why Balanced Copyright Is Essential for Future of Internet EconomyBy Michael GeistUniversity of OttawaTime Magazine's selection of "You" (a reference to the people behind user-generated content on the Internet) as the person of the year in 2006 was mocked by critics as a poor choice that by-passed several notable political leaders. Yet the choice may ultimately be viewed as the tipping point when the remarkable outbreak of Internet participation that encompasses millions of bloggers, music remixers, amateur video creators, citizen journalists, wikipedians, and Flickr photographers broke into the mainstream.The choice has also caused government leaders and policy makers to contemplate how they fit into the world of a participatory Internet and blossoming Internet economy. Copyright law plays a leading role in this regard. While the policy focus of the mid-1990s emphasized the use of technology to exert control over content through the use of technological protection measures (TPMs), the negative consequences of TPMs and their legal protection has led to a growing number of countries to shift back toward a more balanced approach. The need for balance emphasizes robust fair use laws along with anti-circumvention legislation that does not unduly restrict new innovation.While arguments for fair use often center on its benefits for creativity, the positive economic impact should not be overlooked. The 2006 Gowers Report on Intellectual Property, the leading United Kingdom study on intellectual property reform, concluded that "'fair uses' of copyright can create economic value without damaging the interests of copyright owners."Similar sentiments have been raised in Canada. Telus, Canada's second largest telecommunications company, noted to then-Canadian Heritage Minister Bev Oda in 2006 that "in order for Canada to continue to foster innovation and play a leading role in the development and usage of world class communications technologies, our copyright system must be flexible enough to adapt in a timely manner to the rapidly changing technical and entertainment environment we now face."Outside North America, several countries have either modeled their copyright exceptions provisions after the U.S. fair use model or expanded their fair dealing provisions. The Philippines adopted a U.S.-style fair use provision in 1997 and in late 2007 Israel established a fair use provision within its copyright law. Most recently, Japan announced plans to introduce fair use provisions in 2009.As fair use and broader questions of minimum exceptions and limitations take hold, there is a parallel need to ensure that anti-circumvention legislation does not undermine the copyright balance. Anti-circumvention legislation has generally failed to meet the lofty expectations set for it a decade ago as interoperability concerns and consumer frustration with digital locks have led many companies to abandon the approach.For those countries determined to press forward with anti-circumvention legislation, there are an increasing number of illustrations of how these laws can be implemented in a pro-competitive, balanced manner. For example, New Zealand recently enacted copyright legislation with a circumvention exception for "permitted uses" such as fair dealing. Moreover, the statute identifies qualified persons such as archivists and librarians who are expressly permitted to circumvent TPMs in appropriate circumstances.Given the benefits of a balanced copyright approach for the Internet economy, it was particularly discouraging to see Canada reject the need for balance in a copyright bill introduced last week by Industry Minister Jim Prentice. Although Prentice sought to characterize the bill as good for all stakeholders, the absence of a flexible fair use provision demonstrated yet again that action speaks far louder than words.More worrisome are the anti-circumvention provisions, which hold the prospect of locking Canadians out of their own digital content and dampening the potential of the Internet economy. The proposal creates a blanket prohibition on circumventing technological protection measures that accompany some consumer products such as CDs, DVDs, and electronic books. In other words, Canadians that seek to circumvent those products ? even if the Copyright Act permits their intended use ― will now violate the law.The bill includes a few limited circumvention exceptions for privacy, encryption research, interoperable computer programs, and security. Yet the exceptions are largely illusory since the software programs needed to pick the digital lock in order to protect privacy or engage in research cannot be made available if they "unduly impair the technological measure." Although some predicted copyright's demise in the early years of the Internet, recent developments have demonstrated that a balanced approach can provide significant economic benefits both online and offline. Countries such as New Zealand and Israel have sought to develop frameworks that leverage the potential of the Internet by emphasizing the need for flexibility and balance. Others such as Canada have proposed reforms seemingly stuck within an older, failed paradigm that may ultimately serve to frustrate business and consumers alike.

Michael Geist holds the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa, Faculty of Law. He can be reached at mgeist@uottawa.ca or online at www.michaelgeist.ca.