Protecting ourselves to death
First Monday

Protecting ourselves to death: Canada, copyright, and the Internet

Canada is at a critical stage in the development of its copyright law: it has not yet ratified the 1996 World Intellectual Property Organization "Internet Treaties," but it is poised to do so. This article analyses the rhetoric of "protection" ubiquitous in Canadian discussions of copyright policy, and identifies among the various uses of the term both a problematic assumption that protection is or should be the primary function of copyright, and overblown claims about copyright’s power to protect Canadian culture and creators. These "common sense" ideas, fostered by rights–holder lobbies, emerge out of a peculiar Canadian history of cultural nationalism(s), but they may not promote the interests of Canadians. Ironically, while professing fear for their cultural sovereignty, and following the paths of their own internal political, bureaucratic, and rhetorical culture, Canadians appear to be constructing a copyright policy in complete harmony with the needs of American and international capital. I explore a proposal to license educational Internet use, endorsed by parliamentary committee, as one example of the relationship between protection rhetoric and policy development. By casting the Internet as more of a threat than an opportunity, copyright policy developers in Canada are gravely misunderstanding and threatening Canadians’ use of this medium. The participation of Canadians in national and global interaction is crucial to the Canadian public interest, and must not be forgotten in the rush to protection. Beyond its analysis of this specific proposal, this paper calls for a copyright policy in line with the Canadian tradition of balancing private and public interests.


Protecting ourselves to death: Canada, copyright, and the Internet
Protection rhetoric: A critical survey
Protection rhetoric in the light of copyright principles: Some arguments
Protection rhetoric and copyright policy: A case study




Protecting ourselves to death: Canada, copyright, and the Internet

There is no doubt that we must modernize the Copyright Act as soon as possible. The emergence of the Internet and new digital technology has shaken entire sectors of our society. I am thinking in particular of protection for the intellectual property of our creative people. — Hélène Chalifour Scherrer, Minister of Canadian Heritage, 2004
Every man I meet wants to protect me. I can’t figure out what from. — Mae West, in My Little Chickadee (1940)

Spend more than a few minutes browsing Canadian court rulings, policy materials, or public hearings on copyright, and you will come across somebody seeking or promoting "protection." "Protection" seems to be a good thing, and somehow copyright provides it, or should be providing it. But protection of what? Protection from what? Here there is wide divergence, and the divergence points to the mixture of confusion, opportunism, and sheer difference of opinion rife in the messy world of copyright. Some want to protect artists; others rights, assets, industries, or works. Protection of "Canadian culture" in the abstract is a widely stated objective. Only a few argue for protection of consumers or those whose creativity builds on copyrighted works, and fewer still the citizenry or the public domain. Just as the object of protection varies, so does the danger, which is variously identified as consumer greed, corporate greed, new technologies, or American cultural imperialism. The first task of this paper, then, is simply to untangle various applications of the term "protection." I argue that underlying and perpetuating the rhetorical tangle is a particular form of conservative cultural nationalism endemic to the Canadian federal government, and fostered by rights–holder lobbies, who promote a fear of the Internet and digital technology. While Canada’s nationalist impulse is in some ways understandable or even admirable, its articulation as a need for protection is misconceived. This will be demonstrated through an examination of one policy proposal generated in this rhetorical climate: the licensing of Internet use in educational institutions.

First, some mechanics. In Canada, copyright is a joint responsibility of the Minister of Industry and the Minister of Canadian Heritage. The Canadian Copyright Act was last overhauled in 1997, and Parliament at that time mandated a review of the Act within five years. Both the Industry and Heritage departments have produced and commissioned a number of discussion papers and studies towards this end, also motivated by the question of how and when Canada might implement the World Copyright Treaty and the World Performances and Phonograms Treaty (developed in 1996 at the World Intellectual Property Organization, and usually referred to together as the WIPO Internet treaties). The House of Commons Standing Committee on Canadian Heritage (henceforward the Heritage Committee), made up of Members of Parliament, has been the locus of public consultation; on several occasions over the past few years it has invited the public or representatives of "stakeholder groups" to comment on policy directions. In May 2004, the Heritage Committee tabled an Interim Report on Copyright, intended to lead to a first phase of copyright reform legislation. Its first recommendation is the immediate ratification of the WIPO Internet treaties. There are really only three other recommendations: that photographers be granted the same authorship right as other creators; that Internet service providers (ISPs) be subject to liability for copyright infringement by their subscribers and comply with an American–style "notice and takedown" regime; and that Internet material used or transmitted for educational purposes be managed by extended licensing (this last matter was split into four recommendations, two of which will be discussed in depth in Section III of this paper). The recommendations, consonant with the mood of Heritage Committee hearings in the weeks before they were tabled, manifest the Committee’s strong bias towards the rights–holder side of the copyright balance [1]. The report had all–party support in the Committee. During the June election campaign, three of the four major parties showed near–unanimity on copyright policy, and the fourth never articulated its positions: it was not an election issue [2]. The report’s recommendations may move into legislation this fall as the Heritage Committee hoped, but this is not certain: as the Liberals are governing with a minority with no single other party holding the balance of power, they will have to move gingerly even in areas of apparent consensus.

Canadians often conceive of their cultural policy as a defense against the United States, and still line up behind copyright reform proposals that serve American or international corporate interests ...

Given the small space for reflection provided by the election and its results, my goal here is to examine and critique the rhetorical environment in which these copyright reform proposals developed. Government research papers and transcripts of committee hearings form the backbone of my study. I have also considered less formal public discussions of copyright on the Internet and in other fora, and discussions and statements about copyright in the media. Web sites and policy papers prepared by various cultural, educational, and artists’ organizations have been studied, and some important court cases provide a window into judicial thinking on the subject. The selection of documents for detailed discussion in this paper was based not on statistical sampling, but on a) their suitability in illustrating general rhetorical patterns I have identified from broader study; and, b) their effectiveness in revealing assumptions underlying policy development.

Although Canada presents a particularly extreme case of protection rhetoric, the term is a part of copyright law and discussion around the world, and thus this study illuminates a larger pattern of confusion or obfuscation. Protection rhetoric is often mobilized in a climate of resistance (or professed resistance) to the incursions of global capital into local cultures: it is quite common, for example, in indigenous cultural politics. Since Canadians often conceive of their cultural policy as a defense against the United States, and still line up behind copyright reform proposals that serve American or international corporate interests, this case study may hold some sobering lessons for scholars and activists in other national or indigenous contexts trying to develop local or sui generis models of copyright [3]. American–affiliated lobbyists may have played a part in the development of these policy proposals, but a rhetorical approach to Canadian copyright discussion suggests that Canadians are quite likely to have come up with United–States–friendly policies largely for their own reasons, which include a desire to foster an independent non–American culture [4].

I hope this project may also have some utility in drawing attention to language as one shaper of copyright thought in political or public spheres, and within the law itself. The egregious resonances of the piracy metaphor are commonly noted by those critical of copyright expansion, who are simultaneously directing their energies to mobilizing alternative rhetorics of the "commons" or the public domain (see Lessig, 2004; Boyle, 2002). The present paper aspires to be part of this broad undertaking but attends to a term apparently much more benign. "Protection" flies beneath the radar because it is simply the word that always follows copyright, even in statutes and law textbooks — but this invisibility and ubiquity both inside and outside legal discourse is what invites examination.

The paper is in four sections: a critical survey of usage of the term "protection" in recent Canadian copyright discussion; a cluster of arguments against this focus on protection in copyright policy; a case study of the rhetoric surrounding a proposal to license educational use of the Internet; and, a conclusion.



Protection rhetoric: A critical survey

Protection rhetoric in Canadian copyright discussion is mostly generated from three sites: arts organizations, the federal government, and cultural industries. Arts organizations have rallied in support of WIPO treaty ratification and associated proposals, based on the understanding that, as a collection of writers’ organizations claimed in a brief to the Heritage Committee, "the purpose of copyright is to establish and protect ownership of intellectual property" (Writers’ Union of Canada et al., 2003). Comments at an Ottawa symposium on copyright hosted in April 2003 by then–Heritage Minister Sheila Copps show a range of invocations of protection. Lennie Gallant, a songwriter, reported that the Songwriters Association of Canada "works to protect the rights of songwriters." Russell McOrmond, a software developer, was unusual in this gathering in being "more worried about overprotection of copyright than ... about underprotection of copyright." Laura Doyle, a singer–songwriter concerned about having her songs circulating on the Internet without her authorization, asserted that "writers are very protected; recording artists not as protected. So as a young writer, right away there is a Writers’ Guild that would protect me in dealing with TV shows and producers" (she appears not to be aware of the services offered by SOCAN, the Society of Composers, Artists, and Music Publishers of Canada). Musician–producer Jac Gautreau, imagining the origins of singing around a primeval campfire, elaborated Doyle’s idea that artists themselves — not only rights — ought to be an object of protection:

"I think, you know, when it started out, the creators of music were taken care of. They were clothed and fed ... because that was their strength, was the making of music and the making of art. The problem now is that ... the people who are creating, with this new global campfire sort of scenario, aren’t protected." (Minister’s Forum, 2003)

While to a legal mind, "protection of creators" and "protection of creators’ rights" might bear exactly the same meaning, I will argue that in Canada they have a different political weight, so it is important now to note the distinction. The Canadian government too commonly discusses copyright as a means for protecting creators. In a 1999 Library of Parliament review of Canadian cultural policy, for example, reported that "The Department of Canadian Heritage, in collaboration with Industry Canada, continues to work in the policy development and consultation process to amend Canada’s copyright legislation so that Canada can adhere to [the WCT and WPPT]. Many of these amendments will address the new communications environment, with a view to improving both protection for Canadian producers, creators and performers and the remuneration of Canadian creators and performers" (Jackson and Lemieux, 1999).

In her inaugural speech as Canada’s new Heritage Minister in March 2004, Hélène Chalifour Scherrer laid out government priorities for the benefit of the Heritage Committee. As she neared the end of her speech, Ms. Scherrer asserted that "there is no doubt that we must modernize the Copyright Act as soon as possible. The emergence of the Internet and new digital technology has shaken entire sectors of our society. I am thinking in particular of protection for the intellectual property of our creative people" (Scherrer, 2004). The three sentences constitute an apt condensation of established Canadian — or perhaps more specifically, Liberal Party — economic and cultural discourses [5]. The overt claim is that copyright exists to protect the rights of "our" creators, who have been "shaken" by new technologies. The claim is at once an overstatement and an understatement. Some creators do stand to lose from unauthorized circulation of their work on the Internet, or unauthorized copying of it with new technologies. As harm is done to these individuals, they may be discouraged or prevented from developing new work from which many might benefit. However, creators in many media (ranging from Web design to traditional crafts) have embraced new technologies, which have generated new creative processes and facilitated access to resources, markets, and networks among creators. It is thus an overstatement to say that creators as a group have suffered from the advent of new technologies. (We might note as well Scherrer’s phrase "our creative people" which may aspire to be a display of empathy but has a distinctly paternalistic or even coercive ring [6].) But the claim that creators are suffering is an understatement, or a claim of unwarranted specificity, in that creators are only a subset of rights–holders, and it is the large rights–holders whom Ms. Scherrer surely had in mind when she used the economic term "sector" to describe those at risk. At both national and international levels, the movement to "modernize" copyright is promoted primarily by corporations seeking greater protection of their ownership rights over intellectual property. These three sentences perform a fusion, or confusion, between economic liberalism and cultural nationalism, between protecting rights and protecting culture. As she concluded her speech, Ms. Scherrer also spoke "briefly about protecting our heritage," agreeing with the Auditor General that "the Government has a duty to protect and preserve the treasures of the past for the benefit of coming generations" (Scherrer, 2004) — i.e., to support libraries and museums. Protection of Canadian culture from the ravages of time, globalization, and technology is a prime mandate of the Department of Canadian Heritage. As the Heritage Committee is the main forum for public discussion of copyright in Canada, the language of protection naturally flows from cultural policy into copyright, helping to mask various tensions between divergent government agendas.

A comparison with Canada’s nearest neighbour may be useful here. In the United States, the most common justifications of copyright expansion are economic: to a congressman or a lobbyist, copyright is a branch of intellectual property, and intellectual property sounds like a subset of property, and he might see property as an absolute value; or, he might think, Americans need copyright expansion in order to defend business interests in an international market. (Of course intellectual property is no more smoothly analogous to real property than copyright is to absolute ownership rights, but the terms both invite such conflation.) Creators’ rights are touted in the United States as well, but they are window–dressing. The Canadian rhetoric works quite differently, as we have already seen. In Canada, rights–holders may be economically motivated as they lobby for copyright expansion, but it is far from clear that either the Canadian economy as a whole or creators and distributors of Canadian cultural products would benefit economically from such changes [7]. The common sense justification for copyright expansion in Canadian political circles is the protection of artists — artists seen as conduits for nationalist ideology rather than, as is more often the case in the US, threats to nationalist ideology. This Canadian form of cultural nationalism takes its model, I would claim, in Québec nationalism, a movement to which artists have always been rhetorically and personally central [8]. This might also be the place to point out that through Québec, Canada’s legal traditions incorporate the French/European idea of moral rights (droit d’auteur), in which an author is understood to have quasi–natural rights to (for example) protect the integrity of her creation even after signing copyright away. The Théberge case of 2002 suggests that moral rights are not as strong as some might think, but broadly construed they form an important force in Canadian copyright rhetoric and policy development.

Artists symbolize Canadian culture in much political discourse, and in turn symbolize sovereignty, and these symbolic functions often discourage analysis of a more complicated network of relationships.

So the Canadian government represents itself as a protector and supporter of artists — and it certainly does provide a much more significant proportion of arts funding than, say, the United States government. But (or therefore) it also counts on art and artists to bolster its legitimacy. In fact, artists symbolize Canadian culture in much political discourse, and in turn symbolize sovereignty, and these symbolic functions often discourage analysis of a more complicated network of relationships. At the 2004 Juno Awards, Canada’s music industry extravaganza, Prime Minister Paul Martin produced a typical instance of this discourse: "The sovereignty of a nation is dependent on those who sing its music and tell its stories abroad. It’s more than bricks and mortar. It’s an understanding of what we are all about" (Johnsrude, 2004) [9]. The celebratory claim may be sadly true: Canada’s sovereignty may consist of little more, in this age of proliferating international treaties and enforcement mechanisms, than songs and stories performed abroad. It is characteristic of cultural nationalist discourse that extravagant praise of artists figures their heroism as an effect of their passive role as mere mouthpieces for the nation: they exist to convey "its" music and stories to outsiders, and in doing so little and so much they battle its annihilation. In culture–boosting sound bytes there is no time to acknowledge artists who critique or ignore the nation, or who articulate vexed or complex relationships to it. It should finally be noted that Martin’s claim that music exports are a bulwark of sovereignty is very dubious. Internationally successful Canadian artists do contribute to Canada’s profile abroad (one Sunday afternoon in June, MTV Japan played all Avril Lavigne all the time, and the number of Canadian writers, artists, and comedians who have achieved success by various international measures is quite striking), but fame and market value are surely an imperfect measure of contribution to Canadian culture, let alone sovereignty. Cultural creations only exhibited or noticed in Canada may also be valuable. And cultural commodities should not be mistaken for culture, which consists at base of food traditions, local stories, ideas about appropriate behaviour, songs our mothers sang, language and dialect, connection to place, sense of humour, and so on, all of which develop outside copyright protection and usually without government funding or commercial distribution.

In Canada, it seems that protection of cultural industries has become a consolation replacement strategy for a cultural distinctiveness or an economic or immigration protectionism long abandoned. Paul Martin has made it clear that he sees little distinction (or little need to make a distinction) between the interests of tellers of stories and singers of songs and the interests of industry. Responding to a judge’s surprising statement in a March 2004 Federal Court ruling that "downloading a song for personal use does not amount to infringement" in Canada [10], the Prime Minister subsumed artists’ interests into industry interests with the same ease displayed by his Heritage Minister when he promised copyright reform, proclaiming, "we are not going to let an industry that is so important to this country, so important to our ability to tell our stories and sing our songs to the rest of the world, be jeopardized. Let’s understand something — the Canadian music industry is the second most important music industry in the world. It’s an important part of our sovereignty and an important part of our economy" (Johnsrude, 2004). Heritage spokesman Marc Roy put it more bluntly: "our job is to try to protect the Canadian music industry" (Jack, 2004). This statement is refreshing in that it does not lean on sentimental allusions to art or artists. It even invites the question, "what about other industries?" which has often been inadequately addressed: telecommunications and Internet businesses, for example, have quite different copyright interests than the music industry or licensing collectives, which have taken centre stage so far.

Protection, for the music industry and copyright collectives, unsurprisingly means protection of rights and assets. Roanie Levy, the Director of Legal Affairs and Government Relations for Access Copyright, the licensing body for educational copying of print material, appeared at a March 2004 Information Highways Conference to "provide a general understanding of copyright law and [to] look at recent developments in protecting data, content and knowledge assets in Canadian, international and digital environments" (Access Copyright, 2004). The Vice–President of Marketing at EMI Canada told a Toronto Star reporter in the same month that "This is a war. Protecting copyrights is paramount" (Ross, 2004). The unabashed self–interest of this assertion is not in tension with the Copyright Act, which states that "the owner of any copyright, or any person or persons deriving any right, title or interest by assignment or grant in writing from the owner, may individually for himself or herself, as a party to the proceedings in his or her own name, protect and enforce any right that he or she holds, and, to the extent of that right, title and interest, is entitled to the remedies provided by this Act" [11]. But the copyright as war rhetoric would not win sympathy among consumers. By contrast, Richard Pfohl, acting as legal counsel for the Canadian Recording Industry Association (CRIA), masterfully recast industry’s protection efforts when he declared to the Heritage Committee ("knowing that we share the same common passion for our culture, and the welfare of our artists, producers, and creators") that

"More than anything else these [WIPO] treaty provisions protect our culture. Without this protection Canadian creators and the Canadian companies who are currently making these extraordinary investments that I mentioned will be left on the side of the digital highway while the rest of the world speeds by." [12]

Pfohl was asking that the government protect his industry — in this case, from the Internet, from users, and from international competition. But what he performed with elegance was the merging of government and industry interests through the rhetoric of protection. Pfohl did not need to disguise the request for industry protection: we have seen how promptly the government leapt to industry’s defense after the BMG case, and more broadly Canada has a long history of protecting cultural industries with mechanisms such as "Canadian content" regulations for broadcasters and various purchasing, broadcasting, and foreign ownership regulations, sustainable under the North American Free Trade Agreement because they were grandfathered in as cultural exceptions [13]. But Pfohl gained power through appropriating nationalist rhetoric; for the rest of his visit to the Heritage Committee its members deferred to Pfohl (over his protests) as an "expert," apparently forgetting entirely that he represented particular interests.

In the discussion so far, we have encountered creators, rights, Canadian culture, Canadian sovereignty, assets, and industries as potential objects of protection through copyright law. But legal, political, and popular traditions alike also consider works to be objects of protection. "A Framework for Copyright Reform," the document that launched the most recent round of public consultation in Canada, uses the term protection in many ways, but in the following answer to the question "What is Copyright?" with which the document begins, the emphasis falls on protection of works:

"The Copyright Act provides the legal framework within which creators and other rights holders are entitled to recognition and control of, and payment for, the use of their works. Examples of works protected by copyright are: films, novels, songs, information products and computer programs. Copyright establishes the economic and moral rights of creators and other rights holders to control the publication and commercial exploitation of their works, protect the integrity of their endeavours, and ensure that they are properly remunerated. The law provides creators and other rights holders with a number of legal rights to authorize the use of the works."
"Some uses of works are permitted without the rights holder’s consent or without the payment of royalties. These are called ‘exceptions.’ In other cases, authorization is not required by creators and other rights holders are entitled to remuneration."
"Copyright protection exists for a limited time, typically the life of the author plus an additional fifty years. After that time elapses, protection ends and the work falls into the ‘public domain.’" [14].

The claim that a work itself is "entitled" to protection seems to infuse the work with personhood ...

The idea that works are protected by copyright is so common–sensical that it is difficult to see, let alone question: the Copyright Act itself speaks on many occasions of "the work’s term of copyright protection" or "the protection to which a work is entitled." Here as in the case of protection of creators and their rights, a legally trained reader would simply read "protection of work" and "protection of rights to a work" as identical. However, rhetorically, they are altogether different. The claim that a work itself is "entitled" to protection seems to infuse the work with personhood — about which I will have more to say later. The normal position of a work in both the law and the "Framework" passage is under the arm of its owner; the only other possibilities are "exceptions" and the "public domain." The last sentence, evoking the work’s unprotected fall into "public domain," asserts that outside the walls of copyright lies only terra incognita. This highly visual metaphor — we can almost imagine the poor book or sculpture tumbling through the air — effaces the distinction between the intellectual property in a work and the physical work itself, as if both are in danger as soon as copyright term ends. The negative characterization of the public domain is marked in two ways: it is a place into which a work falls, suggestive of a dump or hell (consider how much more neutral it would be to use the word "enter" instead of "fall"), and it is in scare quotes, as if it may not quite exist. To a lawyer, the scare quotes may simply indicate a legally defined term, but to a lay person they produce the opposite effect: rather than grounding the term, they undermine it [15].

Such comments on the devaluation of the public domain will be familiar to those following consumer copyright advocacy in the United States. However, there has been, to date, little public activism in Canada concerning copyright reform. It is true that when the government asked for public comment on copyright reform (and specifically digital issues) in 2001, they were surprised to receive 700 submissions. Of these, some 250 consisted of form letters from members of the Electronic Frontier Foundation, and there were a few other submissions from concerned individuals or experts, but most came from educational, industry, and cultural organizations, and many of these piggybacked on each other [16]. Only in the past year has the Canadian Internet Policy and Public Interest Clinic at the University of Ottawa established a profile on the Internet and become active in legal and policy intervention. Michael Geist is the only scholar commenting regularly in the Canadian media on public interest issues in copyright policy and cases. The reasons for this lack of activity are multiple. Canadian law has moved relatively slowly in this area; Canadian arts and educational organizations and workers receive substantial financial support from government and are therefore more trusting of government; and, Canadian cultural industries have been less litigious, and less successful in the courts, than those in the United States.

In Canada, in fact, the courts have been the most prominent source of claims that the public interest needs to be protected. In CCH Canadian Ltd. v. Law Society (2004), the Supreme Court rejected the plaintiff’s argument that copying portions of copyright–protected works in or by the library of the Law Society of Upper Canada constituted copyright infringement. Such a claim of infringement, the court said, "shifts the balance of copyright protection too far in favour of the owner’s rights, and fails to allow copyright to protect the public’s interest in maximizing the production and dissemination of intellectual works" [17]. This echoes Justice Binnie’s statement in Théberge v. d’Art du Petit Champlain (2002) that "the exceptions to copyright infringement enumerated in ss. 29 to 32.2 ... seek to protect the public domain in traditional ways such as fair dealing for the purpose of criticism or review and to add new protections to reflect new technology" [18]. These quotations should not be construed to mean that the courts in Canada are hostile to copyright — there are too few cases to draw any overall conclusion, and these cases themselves are equivocal — but simply that judges have to date been some of the only public voices speaking about the need for protection of the public interest in copyright policy.

The tangled applications of the term "protection" in the discourse described above are often much more implicit than explicit, but can be somewhat clarified by the following chart:


government Canadian culture technology, time, American culture
copyright law Canadian culture technology, American culture
government copyrights infringers
copyright law creators loss of income, reputation
copyright law industries technology, consumers, market shifts
copyright law assets theft
rights holders copyrights infringers
copyright law works the public domain
rights holders works the public domain
copyright law public interest private interests

In Canadian popular and government discourse, protection is entrenched as the foundation of policy rhetoric, and diverse demands are articulated in terms of protection. The common term may create the impression of common cause, but the chart should show that this is grossly misleading: in fact it has produced intense conceptual confusion and bad policy, as I will show in the following two sections.



Protection rhetoric in the light of copyright principles: Some arguments

This essay seeks to display the distance between what protection rhetoric permits its participants to say and do, and what many Canadians seem to want to say and do. Current copyright proposals are presented as continuous with previous cultural policy, but I would contend they represent a departure, or at least a coming to prominence of what was formerly one aspect of cultural policy: the market (or, as we shall see, simulated market) as cultural policy tool. Copyright, understood as an individual right, can protect rights and assets, but that is all that it does. It is a crude or counterproductive tool for doing most of the other things many people want it to do.

To explore and demonstrate this claim, this section is structured around five questions:

  1. What is copyright?
  2. What is the relation between creators’ interests and rights and those of rights–holders in general?
  3. What is the function of moral rights in Canadian copyright?
  4. Does copyright protect works?
  5. Is protection the best way to describe actual or ideal Canadian government actions?

a. What is copyright?

Copyright is both less and more than a natural right. The courts in Canada have repeatedly insisted that nothing lies behind the statute [19], and thus, in a sense, copyright is mere policy, even if those who ask to strengthen it imply that the appropriate law would better protect some underlying quasi–natural rights. Copyright is not defined in the Canadian Constitution, so we lack (for better or worse) the fulcrum Americans have for arguments about intentions and foundations. Nor is it mentioned in Canada’s Charter of Rights and Freedoms: it is not a "charter right" like voting rights, mobility rights, or minority language rights. One might expect then that copyright in Canada would be held less sacred than the "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication," one of four "fundamental freedoms" listed in the Charter. There has been no Supreme Court contest between freedom of expression and copyright (in general there is little copyright case law in Canada, which goes some way towards explaining the divergence of opinion about what the law is), but if the two were deemed in a particular case to conflict, the Charter right would prevail. And then there is the matter of the "public good" in which rights of various parties are balanced. We can certainly say that Canada has a very long tradition of self–consciously balancing individual rights and collective good. We tax heavily (in a sense an infringement of individual freedom to spend our money as we wish) so that we can have a medicare system, social work services, decent roads, good schools, and so on. These distributed resources are seen as an investment in the general good, with the general presumption that the general good is a goal in itself, and that on average individual well–being is increased if general well–being is increased.

Copyright can be seen in this light: it is an individual right, but it is also a system, in which the rights–holder is only one of many whose interests and goals might be served. The prominent scholar of Canadian intellectual property law, David Vaver, puts it this way:

"What intellectual property law needs, whenever a policy or a concrete dispute is being debated or resolved, is a careful weighing and balancing of interests ... Against copyright or intellectual property as absolute ideals are ranged values of at least equal importance: the right of people to imitate others; to work, compete, talk, and write freely; and to nurture common cultures. The way intellectual property should be reconciled with these values — or vice versa — has changed much over time and continues to vary among countries and among legal systems. The adjustments occur for social and economic reasons; they are not pre–ordained by natural law." [20]

Given the emphasis on balancing individual rights and the common good in Canada, it may be surprising that government discourse on copyright has emphasized so strongly the individual rights definition of copyright, rather than its existence within a cultural system. As we have seen, the courts are almost alone in Canada in articulating the idea of balance and flexibility of use and access. As Justice Binnie wrote in Théberge v. Galerie du Petit Champlain (2002),

"In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self–defeating to undercompensate them. Once an authorized copy of a work is sold to a member of the public, it is generally for the purchaser, not the author, to determine what happens to it. Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long–term interests of society as a whole, or create practical obstacles to proper utilization." [21]

Certainly, copyright is one of the commercial conditions under which culture enters the marketplace. A writer contracts with a publisher to produce a book; an artist sells sculptures but retains copyright, and so on. Copyright protects the investment of the seller, guaranteeing a monopoly (with some exceptions) for a specified time. It is an international system, and clearly, it is unimaginable that Canadian copyright law would not share various contours and principles of the copyright laws of its trading partners. But to hold that copyright law must serve only or primarily the needs of owners of copyright material (as the Canadian government currently does) is to fatally upset this balance necessary for the flourishing of a Canadian culture and economy.

One might hope for a copyright law that would acknowledge students’ and teachers’ role as participants in culture, not just purchasers of it.

Even the metaphor of balance has its limits because it posits users and creators as distinct entities placed on either side of a fulcrum. In fact, as many have pointed out, we cannot draw a firm distinction between "creators" and "users": every single person alive on earth is a consumer of culture, and anyone who ever puts pen to paper (or finger to keyboard) is also a creator. Copyright is automatic upon fixation of original expression, whether or not an author ever tries to sell his works. Thomas Jefferson famously observed that an idea could not be owned because "the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispose himself of it" (Jefferson, 1813); this quotation is often adduced as a justification of the "idea–expression dichotomy" in copyright law whereby ideas cannot be copyrighted. In today’s world, however, copyrighted expressions or trademarked images are also "forced" into our possession, as journalist Roberta Smith eloquently puts it:

"Our surroundings are so thoroughly saturated with images and logos, both still and moving, that forbidding artists to use them in their work is like barring 19th–century landscape painters from depicting trees on their canvases. Pop culture is our landscape. It is at times wonderful. Most of us would not want to live without it. But it is also insidious and aggressive. The stuff is all around us, and society benefits from multiple means of staving it off. We are entitled to have artists, as well as political cartoonists, composers and writers, portray, parody and dissect it." [22]

Even those who would not presume to the title of artist may seek to respond creatively to pop culture, however clumsily, and a copyright system must acknowledge and enable this participation in cultural production. This is where education comes in: one might hope for a copyright law that would acknowledge students’ and teachers’ role as participants in culture, not just purchasers of it.

This brings me to one more example that will demonstrate the necessity of thinking to the future in copyright policy. Consider the analogy of keeping an oral tradition alive. You can write down stories exactly as they were told, or film them, and get all the permissions, and surely then you are protecting them. This is known as "salvage ethnography." But you are not protecting the act of telling, the fact of audience, the reason for telling, the desire to tell. You are not protecting the tradition as a whole, only its artifacts. You may even be contributing to the death of the tradition by fetishizing the individual "authentic" telling and discouraging evolution and experimentation. This is what happened to many Aboriginal oral cultures in Canada — or almost: evidence of them was preserved, but they almost died as their economic, political, and family preconditions of existence were eroded. They are now being revived with great effort and no sure view of success through a variety of means and media. An analogy could be made to the Internet. Both oral cultures and the Internet are forms or ecologies of knowledge not primarily motivated by the desire for profit. While both depend for their richness on the efforts and genius of individuals, their participants nourish an awareness of the relation between the individual creative act and overall community dynamism. Without the health of the community, Aboriginal oral traditions were grievously endangered. The Internet too could be killed off if an imbalance developed between protection of individual rights and maintenance of a seedbed for future creativity.

b. What is the relation between creators’ interests and rights and those of rights–holders in general?

Just as most copyright discussion positions creators and users on opposite sides of the battle, it tends to lump creators with other rights holders (companies, heirs and assigns, collectives). This is a false geometry. Creators are not even merely a subset of the group "rights holders": they are more accurately thought of as rights holders and creators. Some of their interests lie in products already made, and perhaps already distributed, sold, licensed, or broadcast. In this, they, like other rights holders, may seek more enforcement or licensing. But creators also have an interest in being able to create new works. In this capacity, they need easy and affordable access to song rights, images, quotations, and so on — as Roberta Smith notes above. There already is a mechanism for this in Canadian law: fair dealing, a provision never emphasized and sometimes not even acknowledged by those who speak for creators. For example, Access Copyright, the collective which administers licenses for reproduction of many Canadian works, claims on its Web site that

"Simply put, it’s illegal to make unauthorized copies of copyright published works such as newspapers, magazines, journals and books. Under Canada’s Copyright Act, the creators (writers, poets, journalists, playwrights, photographers and illustrators) and publishers of those materials have the right to decide when and how their work is copied, whether it’s being photocopied, scanned or downloaded." (Access Copyright, Web site, 2004)

This may sound empowering to creators, but then we ask, how many artists or musicians do not routinely make photocopies of print material or listen to copied music without paying licensing fees or seeking permission? Are they all lawbreakers? Happily, Access’s statement is simply not true: it fails to make mention of fair dealing, which permits Canadians limited unauthorized and unlicensed copying for purposes of research, private study, news reporting, commentary, and criticism. This is a smaller and more explicitly limited space than exists in American law as "fair use," but it is a space nonetheless. If we take the lengthy intellectual property notice of the Access site seriously, we would believe that my quotation above, quintessential fair dealing use, is illegal. With the exception of "private internal" use, Access states, "none of the Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, without ... prior written consent" (Access Copyright, Web site, 2004). Access’s presumptuous self–exemption from the fair dealing provisions of the Copyright Act does not meet the needs of creators who wish to author new works. This is exemplified by the present essay: apparently I quote the Web site at my peril.

The raw truth is that with the exception of moral rights, copyright law protects copyright owners, and on the whole, non–creator rights owners have much more money for lobbying and lawyering than creator rights–owners.

It is difficult for creators to represent themselves adequately in copyright debates [23]. The raw truth is that with the exception of moral rights, copyright law protects copyright owners, and on the whole, non–creator rights owners have much more money for lobbying and lawyering than creator rights–owners. There are also more of them. Since copyright lasts fifty years after the death of an author, more than half of creator copyrights not transferred by contract to others rest with heirs or assigns. Barring specific contractual agreement or industry tradition (as exists in academic institutions), work produced in employment situations is considered "work for hire" and automatically falls under the ownership of the employer. There may not be too many Mona Lisas there but there are a lot of copyrights. This should suggest that expanded copyright is not a very focused way of helping creators: other paths, such as tax breaks, free education, and grants, would be more directly effective. (This is not to say that other rights–holders merit no protection, but rather that it is inaccurate to represent their interests as identical to those of creators.) If the differing interests have not yet been established, consider this: non–creator rights–holders stand to make money from a proposed extension of copyright term from life of the author + 50 years to life of the author + 70 years — but the authors, of course, will be too dead to benefit. Rhetorically, the plea for the unborn descendants of penniless authors seems to have been irresistible since the days of Wordsworth [24], but once we dry our eyes, this proposal is hardly a meaningful help to creators.

c. What is the function of moral rights in Canadian copyright?

Moral rights can only be held by creators and their heirs: they can be waived but not assigned. Thus they may be a promising tool in differentiating creators from rights–holders, as I have urged above. They certainly play a prominent role in policy discussion at the Heritage Committee, where the support of artists is generally represented as a moral obligation. Consider the tone of MP Christiane Gagnon’s remarks in Committee: "We should buy books and stop making photocopies. Even I have to discipline myself in that area because it’s showing respect for the creator. I would like the creators to earn a proper living and not have them living in poverty" (House of Commons Standing Committee on Canadian Heritage, 27 April 2004). Even taking translation into account, there is a quasi–religious aura to Ms. Gagnon’s phrase "respect for the creator" that would not surround her attitude to the person who made her sandwich or her shoes. "Even she" makes photocopies, she confesses, declaring her efforts to "discipline" herself for her disrespect and her contribution to the impoverishment of artists. In fact, Ms. Gagnon has fair dealing rights, supports public lending rights through her taxes, and may be using resources of an institution that pays licensing fees, but this apparently cannot assuage her guilt, which is almost existential. It may be useful rhetorically to creators that politicians feel (or feel they ought to feel) a moral obligation to protect creators’ moral rights. It is the main card creators have to play, it seems, and play it they do. It is worth noting however that when it comes to policy, what we see in the Heritage Committee’s Interim Report is proposals for increased economic rights for rights–holders in general. For example, the Interim Report notes that authors have been concerned about interlibrary loan in electronic format "with respect to their moral rights" [25], and then proceeds to propose a licensing scheme that only addresses economic rights. Let us hope that the rather ridiculous concern about moral rights here (interlibrary loan surely poses no more danger to moral rights than many other forms of circulation or marketing) was raised strategically rather than sincerely: the licensing solution may benefit some creators, but licensing by its nature reduces creators’ ability to control the use of their work. The concern about moral rights serves as part of the government’s rationale for what can be described as a tax on education. Given also that Théberge v. La Galérie du Petit Champlain indicates that the courts understand moral rights as very circumscribed, it appears that talk of "protecting" moral rights functions mainly as a booster of rights–holders’ economic interests.

It might be productive for creators to explore whether moral rights could be invoked independently from protection discourse. The belief that authors "own" their work in some primal sense does not have to lead to a belief in total copyright protection. Mark Rose has pointed out that nothing is more "ours" than our children, and yet we are not allowed to sell them or in some jurisdictions even to spank them; they grow up and go out into the world without our say–so; and custom and law dictate that our relationship to them is nothing like ownership [26]. Creators often speak of their works as children (this goes back at least as far as Plato in Phaedrus), so the limitations on creators’ control suggested by this metaphor are striking: if works are children, then surely artists’ control over them should be understood as temporary and limited. They sometimes (as in the interlibrary loan discussion, above) want to know about each and every transaction concerning their work: apparently parents will worry about the Internet, even if their children are songs! And yet the solution for both kinds of "children" surely does not consist in constant supervision, which exhausts the parent and limits the child, but in provision of new opportunities and diversions along with some technological limitations if needed. The parent–child metaphor does not suggest unlimited protection abilities or rights of control. Still, on balance, I think it more harmful than helpful to creators’ whole range of interests. It suggests, for example, that a "good parent" would never sell her creation, and indeed the public or pundits often pass judgment on artists who make "too much" money, or who license their songs or images for commercial purposes, or who allow adaptations of their work for film without caring to supervise. Our opprobrium is distinctly moral, as if the creators should be protective earth–mothers instead of exploitive stage–mothers. But, after all, the works are not persons: why should artists be criticized for benefitting from their talent or reputation? As long as moral rights are emphasized, creators may find themselves caught in this double bind.

d. Does copyright protect works?

The idea that copyright protects works is fundamental to law and policy around the world, but it is a legal convention only. The protection of a work, to a lawyer, may mean the same thing as the protection of rights to a work — just as property is understood as the exclusive right to a thing, producing a non–controversial conflation between a person’s property rights and their property. So perhaps it takes a non–lawyer to point out that copyright law does not, as it conventionally claims, protect works: it protects rights. Rhetorically and politically, copyright’s claim to protect works carries great weight. Action to "protect rights" is transparently owner–serving, but action to "protect works" pretends to serve the public good. The conventional claim or assumption that copyright protects works provides an invisible but powerful justification of private rights every time it is uttered. As we have seen, the associated assumption is that unowned works are vulnerable to the "tragedy of the commons" or the depredations of garbage–pickers in the public domain [27].

Certainly, it is in the public interest that works (databases, art, computer programs, and so on) be protected: they represent human labour and resources that it would not make sense to waste. During copyright term, creators may be protectors of works: they can decide when, how, and if to publish or sell, and even after publication or sale they have a moral right to the integrity of their work, and can go to court to prevent its being mutilated or altered. This is entirely legitimate. However, if moral rights are asserted to insulate published work from interaction with the world, protecting these rights might not protect the work itself. If there is only one copy of it, a strong case can be made that copyright protects or should protect its integrity, but if many copies exist (as with a book, for example), preventing changes to or adaptation of it does not protect the work — but rather the reputation or market interests of the rights–holder. Whatever the degree of legitimacy of the rights–holder’s claims, the "interests" of the work, if it could be said to have them, are not necessarily the same as the interests of its owners, and intentional or unintentional confusion between them benefits rights–holders, not works. The confusion between objects of protection in Canadian copyright discussion leaves the impression that copyright infringement, exceptions to copyright "protection," and limits to copyright term, wound not only an individual or a company but a work, a part of the collective heritage. This is rarely the case.

In fact, much of the protection of works happens outside of or despite copyright law. Libraries, museums, collectors, and packrats protect works in the sense of preserving them. They preserve both the material and intangible components of art — that is, art as both physical and intellectual property. (If a painting is destroyed, both physical property and intellectual property are lost, so preservation of works in a physical sense is necessary to preservation of their intellectual property.) Copyright law often discourages preservation efforts, and copyright in its proposed expanded form would be even more constraining. Copyright protection can leave films and books vulnerable to decay when they might otherwise be digitized, because the cost and difficulty of locating copyright owners — even if they might not seek payment — is prohibitive [28]. Technological protection measures will lock up works behind coding that museums of the future may not be able to afford to crack. Furthermore, under American law, circumvention of technological protection measures is illegal, and even if Canada does not follow this legal model, our children’s children will not save such works in the first place because they themselves will not be able to access them. It is perhaps only a matter of time before copyright law shuts down the Internet Archive with its stunning "Wayback Machine" that allows full access and browsing within "snapshots" of Web sites of the past. If this happens, thousands of Internet sites from the past will simply be lost (Hirtle, 2004). Older material is luckily public domain, and hence legally safer to digitally preserve, enhance, and disseminate. For example, vast numbers of early publications on Canada have been posted at Early Canadiana Online (, and McGill University’s fur trade collection has been beautifully edited and displayed online (

The convention that copyright protects works may be invisible, but it is far from innocuous. In Canada, it resonates with a widely–held belief that art is the nation’s heart, and in turn bolsters sympathy for corporate rights–holders, self–cast as protectors of the national heritage. Add in the complementary belief that the public domain is a place of chaos and violence where works are destroyed, and you get a powerful ideological network that undergirds arguments for copyright extension and against fair dealing. However, cultural nationalism need not be articulated this way: it could be harnessed to a recognition of the public domain as cultural storehouse and resource.

e. Is protection the best way to describe actual or ideal Canadian government actions?

Even if we grant that cultural sovereignty is a significant and attractive goal, and that the government should be in the culture business, and even if we thought that copyright could protect Canadian culture, we might ask what all this talk of protection indicates. Calls for protection, I would claim, generally imply a rare, helpless, or sacred object which needs to be collected in a safe place and kept there. While there is no doubt that Canadian culture, by the sheer economics of scale, is vulnerable to American culture, putting it in a zoo or a mausoleum is not an attractive solution. Science fiction writer Cory Doctorow makes this point on behalf of his colleagues:

"Stamping our feet and suing the universe for compensation hardly does us credit as a profession. The best that can get us is some kind of historical preservation, a science fiction writers’ museum in which outmoded means of production are put on display so that kids can see what life was like in the dark days before the Internet changed the world." (Doctorow, 2001)

I might add that if we have gotten to the protection stage — the last ten remaining animals of the species — it may be too late. My own assessment of the vitality of Canadian culture is less dire. Interestingly, the "new digital technologies" of which the recording industry foments so much fear are some of the places where we can see Canadian culture at its most vibrant. The Department of Canadian Heritage itself has fostered and funded both modest local history Web sites and large–scale resources such as the Canadian Encyclopedia Online ( and a Canadian culture Internet portal ( The Advisory Board of the Canadian Culture Online Project, appointed by the Heritage Minister, has declared its intention to "de–emphasize commerce on Canada’s corner of the Web" because "the government can create a public place online where Canada’s culture can stand on its own merits" [29]. This is not protection but production. In other areas of cultural policy, as I have already noted, the Canadian government has funded culture and creators through the Canada Council’s various programs and subsidized education: these programs too are not "protective" but enabling. The catch is they cost money, and the government is (understandably) attracted to cost–free initiatives. Protective broadcast and foreign ownership regulations may not have direct costs, but they are either politically unpopular or impossible because of international pressures and treaty obligations. Thus copyright comes to the fore as a policy promoted by our largest trade partner and some of our most vocal industries, which costs the government nothing. Canadians should be wary about copyright’s new prominence in cultural policy.



Protection rhetoric and copyright policy: A case study

Any of the recommendations in the Heritage Committee’s Interim Report on Copyright Reform of May 2004 could be discussed in terms of protection rhetoric, in that the committee seems to be functioning in this report as more or less a mouthpiece for rights–holder lobbies. However, the licensing of the Internet for educational purposes will form my case study here [30]. This proposal, and the discourse surrounding it, demonstrates the cost of educational institutions’ participation in protection rhetoric. As an initiative congruent with previous Canadian rights management practice rather than an emulation of American interpretations of the WIPO treaties, it also demonstrates how nationalist rhetoric may dovetail with the agendas of international capital. This proposal is put forth in the Heritage Committee’s Interim Report on Copyright Reform of March 2004 as follows:

  • Recommendation 4
    The Committee recommends that the Government of Canada amend the Copyright Act to allow for extended licensing of Internet material used for educational purposes. Such a licensing regime must recognize that the collective should not apply a fee to publicly available material (as defined in Recommendation 5 of this report).
  • Recommendation 5
    The Committee recommends that publicly available material be defined as material that is available on public Internet sites (sites that do not require subscriptions or passwords and for which there is no associated fee or technological protection measures which restrict access or use) and is accompanied by notice from the copyright owner explicitly consenting that the material can be used without prior payment or permission. [31]

An evaluation of this policy proposal can wait until later; I will start by sketching its evolution and relation to protection rhetoric. Educational licensing for Internet use is fuelled by two complementary pushes for protection: educational institutions’ desire for protection from lawsuits, and the recording industry’s demands for protection from unauthorized Internet circulation of their materials. Both parties share the assumption that rights protection is the primary goal of copyright law. Both sets of agendas resonate with the fear of some in government that the Internet threatens Canada’s cultural sovereignty. However, not only are the various protections sought entirely distinct, but preoccupation with any or all of them has prevented any positive conception of the educational properties and conditions of the Internet as a public space.

The educational Internet licensing proposal has two lines of origin. On the one hand, Canada’s educational organizations (the most active in policy development are the Council of Ministers of Education of Canada (CMEC), the Association of Universities and Colleges of Canada (AUCC) became concerned about liability issues for Internet use in educational institutions. If any student or instructor at such an institution were to be sued for copyright infringement, the institution did not want to be liable itself. These associations became convinced that under current Canadian law, routine Internet use in educational settings is illegal (Council of Ministers of Education of Canada, 2003). This interpretation of the law, which may be based on the 1999 Tariff 22 decision (Copyright Board, 1999), is only one possible interpretation, and is made without any mention of the implied license theory which generally governs the behaviour of both Web site proprietors and Web site users. In fact there exist numerous legal theories that are more educator–friendly. CMEC’s adoption of this stance is therefore puzzling — it is either intentionally defensive or the product of bad advice [32]. Apparently, protection from lawsuits, no matter how unlikely, and no matter how frivolous, was the priority of the educational institutions. Rather than seeking a clarification or expansion of the category of fair dealing (which is a far more circumscribed provision in Canada than fair use in the United States), educational organizations sought a specific "exception" in the copyright law whereby use of "freely available" material on the Internet in educational institutions — which they defined as material communicated freely with the rights–owner’s consent — would be legal. With this proposal, which they promoted aggressively, they conceded that the copyright environment — in this case, the Internet specifically — is a market in which property is always protected unless a government in its largesse carves out small exceptions. They also presumed, oddly it seems to me, that educators and students routinely need to use material on the Internet beyond the bounds of fair dealing or implied license.

Meanwhile, rights–holders were also seeing the Internet as a threat to business as usual. The music industry has the most at stake in this regard, but even individual rights–holders are often concerned that file–sharing and other Internet–facilitated piracy is losing them money. A Federal judge stated in March 2004, as we have seen, that file sharing may be legal in Canada [33]; this case will be appealed, and the judge’s comments about filesharing did not make up the core of the decision, but it sent a certain chill through the music industry. Rights–holders’ lobbies have pursued several strategies to promote their interests. The most central is the promotion of legislative reform to confirm the illegality of file–sharing, to protect technological protection measures, and to give Internet service providers indemnity only if they comply with stringent "notice and takedown" procedures. The shorthand for this package is "copyright reform," or "WIPO ratification," recommended in the Interim Report. Of course the road to legislation can be long and rocky. Simultaneously, then, rights–holders have argued that ISPs are already liable for copyright material streamed through their servers, pursuing "Tariff 22" through the Copyright Board, until in June 2004 the Supreme Court ruled that tariffs could not be imposed on ISPs to address this issue (SOCAN v. CAIP). Meanwhile, Access Copyright, the collective that licenses the copying of print materials in educational institutions, saw that levies on educational Internet use might be an efficient way of protecting copyright. We have already seen that Access does not in a sense believe in fair dealing, and clearly would not accept an "implied license" theory of copyright use either (think of "click to download" buttons and so on). Access’s promotion of educational Internet licensing was facilitated by the educational organizations’ argument that educational institutions should have an "exception" to permit educational Internet use: their belief that they needed an exception suggested that without one, they thought they would need a license.

The cost to educational organizations of buying into the rhetoric of protection is quite dramatically displayed in the transcripts of the Canadian Heritage Committee hearing on "Access issues" in April 2004. Roanie Levy, of Access Copyright, was eloquent in her attack on the Internet exception, building relentlessly on her initial claim that "one of the crucial roles of government is to support an efficient and fair marketplace," and casting the educational organizations as buyers who seek free materials from artists:

"We do not insist that certain workers — farmers or bus drivers, for example — not be paid a day a week for the benefit of the education system. That is why we have a taxation system to address the reallocation of revenue — it is the most efficient and fair way of funding our education system — not copyright exceptions that target a specific class of workers." (House of Commons Standing Committee on Canadian Heritage, 27 April 2004)

In her capacity as protector of creators, Levy argued that "Exceptions are extreme measures that should only be resorted to when addressing extreme circumstances, such as when access cannot be provided by any other means." Her assumption that all the material on the Internet is put there to be sold is entirely egregious when we consider the wealth of material generated by and for educational institutions themselves, but her argument was coherent, and most importantly, consistent with assumptions of the "education stakeholders" and user groups themselves.

Is it infringement for me to read a library’s copy of a newspaper? Or for me to watch television without cable? If so, libraries and television alike would have to be abolished.

Ms. Levy was echoed later in the meeting by Liz Warwick of the Periodical Writers’ Association of Canada, who even after acknowledging that she negotiates a special fee when her material is to appear on the Internet edition of a publication, made the blanket claim that "Exceptions hurt creators. First and foremost, they hurt us financially. For freelance writers, our bread and butter is quite literally the control over who uses our words and how much we are paid for them. But more fundamentally, exceptions strike a blow to the value that should be applied to creative works." For Ms. Warwick, exceptions are lapses in protection. When she claimed that "Under Canadian copyright law ... creations rightfully belong to and should be controlled by the creator," she showed no knowledge at all of the fact that most "creations" are not controlled by the creator, even in the statistically unusual case where they are still owned by the creator. (Though the Internet was her bogeyman, it is surely the printing press that allowed works to escape their authors’ control — and also allowed the profession of authorship to become possible.) Ms. Warwick went on to claim that "contrary to all established economic custom and tradition, students, schools, and libraries are requesting free access to private property."

But is it infringement for me to read a library’s copy of a newspaper? Or for me to watch television without cable? If so, libraries and television alike would have to be abolished by Ms. Warwick’s logic. She wants to prevent not just unauthorized copying, but unauthorized reading or viewing. The library example — not to mention the "established economic custom and tradition" of borrowing and reselling printed and recorded matter — shows that she is simply incorrect that there exists a "traditional economic mechanism of payment for use." We might however ask if things have changed: is it infringement for a student to read a newspaper online? Newspapers have several options for supporting their Internet service: advertising is the most common, but some periodicals charge for access or for special services like "news tracking." Under terms of their choice, many simply invite readers to read, and surely then cannot accuse them of copyright infringement for so doing. Ms. Warwick’s "private property" metaphor is entirely inaccurate — but again, it makes sense in the context of a discourse of protection. Ms. Warwick, and other writers, feel vulnerable. They are vulnerable. But if they are concerned that their articles are now being read by more people and they are not being paid enough, that is between them (or their association) and those to whom they sell their articles. It is puzzling but typical that Ms. Warwick allies herself with publishers against users when in fact her complaint may be with those publishers.

In the face of a barrage of pro–industry spokespeople (the owners:users ratio on this day was 5:1), Roger Doucet of the Canadian Ministers of Education of Canada was utterly ineffective. MPs described him as an"odd man out" who was "trying to get something for nothing." Their impression was not really wrong. Rather than offering a description of the rich intellectual content and dynamics of the Internet (it was patently clear that the MPs had little experience with the medium), or offering a vision of the Internet’s history and vitality within educational institutions, Mr. Doucet only begged: "We seek, in the public interest, to guarantee that students and teaching staff may enjoy reasonable legal access to digital material." Instead of invoking CCH v. Law Society to bolster a claim about fair dealing, Doucet left that to Michel Beauchemin from DAMIC, a coalition of Québec copyright collectives, who used the case as a warning to the government not to grant any exceptions, because the courts would defend and perhaps even broaden them: "we have to be cautious, because recent jurisprudence clearly favours users." Doucet was on another planet: "As members of this committee are aware, Canada’s current Copyright Act makes it illegal for students and teachers to participate in routine classroom activities where they download, save, and share Internet text or images that were intended to be freely downloaded and distributed. There’s a problem here that needs to be addressed as soon as possible." In conceding, entirely erroneously in my view, that schools are currently breaking the law, he put himself in the position of a drug user asking for clemency because "everybody does it." This is a very weak position from which to argue. Throughout, Doucet protested that his main goal was (merely) clarity: "what we are suggesting is that we find some clear way to identify what should be paid for on the Internet," or "It has to be clear what is free and what is not." This is a protection–driven agenda. Of course, Access Copyright is in the business of providing clarity, so the argument for an exception evaporated completely.

Copyright policy in Canada appears to be driven at the moment by the concerns of rights–holders who fear unauthorized distribution of their material on the Internet, and the concerns of technocrats that the legal protocols be honoured and regulatory mechanisms operate smoothly [34]. Educational Internet licensing aims to provide efficient compensation for unauthorized circulation, but though it would certainly generate revenues for some parties, it is an inappropriate policy mechanism for reasons of both principle and practice. It is far from clear, for example, that it would most benefit those lobbying for it: if Google could claim copyright on its site, it would be the biggest winner. This levy would constitute (if the nightmare of logistics can be overcome) an unsolicited handover of public funds to private and mostly non–Canadian hands, and a voluntary increase in educational costs for Canada compared to our trade partners. Most Internet sites used by students and teachers are either created by educators, already supported by advertising, or already accessed under paid subscription (as is the case with academic journals and media search services): the rationale for unsolicited or double payment in this situations has never been provided. Though the Interim Report suggests that sites explicitly permitting educational use might be accessed for free, its definition of "publicly available" is so restrictive that it is virtually useless: Webmasters around the world are not likely to find out about Canadian access requirements or be motivated to meet them. Furthermore, it is not at all clear how the pricing structure of a levy would accurately reflect the few permitted "zero–rated" uses. Other practical problems and questions only multiply upon further consideration, but I would like to close with an invitation to educators to take a visionary role in learning and teaching about copyright.

The vast majority of Internet use in educational institutions is for purposes of research or criticism, both categories of the fair dealing provision. Fair dealing has recently been affirmed in the Supreme Court as a "user’s right" [35]. While it is indeed less clearly delineated than liability protection under contract, and it is less capacious than American fair use, it could be more firmly and amply elaborated, even by educators themselves. In the United States, numerous guides and policy papers try to clarify for users and educators the reasonable bounds of fair use; one of the best resources is Stanford University Library’s Web site which includes in its plethora of information a bottom–line item entitled, "Disagreements over Fair Use: When Are You Likely to Get Sued?" [36]. Most such resources currently available in Canada are provided by the copyright collectives [37]. CMEC and others distribute a short copyright guide for teachers (Noel and Breau, 2000), but though it explains the concept of copyright balance it barely acknowledges the existence of fair dealing. Educators need to articulate a more visionary interpretation of the principles behind the law. They might harken to the venerable Chicago Manual of Style, which offers "a word of practical caution": "if a use appears to be fair, the author should probably not ask permission. The right of fair use is a valuable one to scholarship, and it should not be allowed to decay through the failure of scholars to employ it boldly" [38].

Educators might also consider it part of their job to teach students about copyright: about both principles and compliance. If schools function under an exception, they will educate students in modes of use of copyrighted material that will become illegal as soon as these students leave the educational institution. What use is this? It is much more appropriate for these institutions to articulate a reasonable scope of fair dealing activities, and explain them [39]. Any uses that were not clearly fair dealing could be managed with individual permissions and purchases, a process in which students could participate, so that they could come to understand the rationale of copyright. At the moment, most young people have no respect whatsoever for copyright (on this point my own experience in the classroom suggests that the rights–owner organizations are right), and all the promotional tricks and technological protection measures in the world will not enforce copyrights if citizens have no respect for or understanding of copyright principles [40]. Among the many reasons for balanced copyright is the fact that it is the only view of copyright that teachers will be able to convince teenagers to respect. Ultimately, and ironically, Ms. Warwick of the Periodical Writers’ Association is quite right, despite her owners’ rights bias: "Why introduce an exception where no exception is necessary, and where such an exception will do harm? I’d really like to be clear about this: exceptions to copyright law are harmful to the growth of the knowledge economy" (House of Commons Standing Committee on Canadian Heritage, 27 April 2004). What makes sense for educational Internet use is neither an exception nor a levy, but rather a confirmation that fair dealing applies in schools just as it does everywhere else.




Copyright policy must support vibrant and economically viable Canadian cultural production. Protecting individual rights only will not achieve this goal: it will raise the costs of and inhibit access to cultural materials, while benefitting only a few. If we see culture as purely a market, or inevitably becoming only a market, we might say that this is the only way it can be. If we see the Internet as purely a market, or inevitably becoming only a market, we might say that this is the only way it can be. But if we see culture as an ecology including both market and non–market dimensions, in which we want to maximize quality and output, we can recognize that future creativity and initiative comes from education, from community, from experimentation, from imitation, and from absorption. Creators do not create from nothing. They borrow from peers and previous generations — through fair dealing, permission, or the public domain; they create; they have a limited monopoly to reward their talent and effort; and then that material becomes free again for later generations of creators. Cultural markets depend on non–market creativity, which generates new ideas and revisits old. Insofar as protection is a goal of copyright law and policy, it must apply to non–market cultural practices just as strongly as it does to marketed culture.

Fair dealing must be technology neutral: it must apply for Internet use, and to technologies yet to be born.

Bearing this in mind, it would be appropriate for the Canadian government to reinforce the provision of fair dealing, to ensure that Canadians’ freedom of expression or ability to create and comment is not unduly constrained. Fair dealing must be technology neutral: it must apply for Internet use, and to technologies yet to be born. At the moment, fair dealing is permitted for private study, research, news reporting, criticism, and review, and there are strict and somewhat awkward rules about attribution. It should be clarified that just as fair dealing can be practiced in the context of commercial activities (see CCH v. Law Society, 2004), it can be practiced in educational institutions. This is not to say that all educational copying need be free — schools do after all constitute a large market for rights owners — but that reasonable users’ rights should apply in schools just as they do everywhere else. Private copying — for self–education, amateur creativity, and so on — should be also named as fair dealing. More generally, the government would do well to affirm the existence and importance of the public domain — to take it out of quotation marks, as it were. This body of unowned material is, like Crown land, water, and air, an essential part of Canada’s riches — spiritual and material. A combination of flexible funding of libraries, museums, and Internet projects, and a firm refusal to extend copyright term or allow licensing of the Internet, would be steps in the right direction. Such strategies could be complemented with incentives, conceptual and financial, for creators’ organizations and collectives to move away from protecting old interests to developing new platforms for selling or communicating their work.

To take protection as the primary function of copyright is to perpetuate and permit confusion, and to limit cultural policy goals. The Universal Declaration of Human Rights states that "Everyone has a right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author" (Article 27.2). The preceding clause of Article 27 places these rights in a wider context: "Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits." [41]. Participation is as important a focus for copyright policy as protection. End of article


About the author

Laura J. Murray is Associate Professor in the Department of English at Queen’s University where she teaches American literature, Aboriginal literature, and literary theory. She is embarking on a comparative study of the rhetoric of copyright discussion in American, Canadian, and Aboriginal contexts. For more information, see



This research was funded by a Standard Research Grant from the Social Sciences and Humanities Research Council of Canada, and greatly facilitated by Kevin Massie’s effective research assistance. Thanks also to Shannon Smith and Sergio Sismondo.



1. The photography recommendation is not terribly controversial, but some intervenors were concerned that vesting intellectual property in the photographer may pose a problem for those who commission photographs — for weddings, for example (see Canadian Internet Policy ... 2004). The committee might have generated a recommendation that pleased both photographers and consumer advocates, but it did not do so. The other recommendations are even more unfriendly to consumers: American implementation of the notice–and–takedown model has generated many academic and popular critiques (see and Zarins, 2004), and I describe the problems of educational Internet licensing in the third section, "Protection rhetoric and copyright policy: a case study."

2. Partly because of its timing (immediately before the election call), but also because of a more general lack of copyright discussion and copyright literacy, the Interim Report generated little public response. But see for a joint response by the Canadian Internet Policy and Public Interest Clinic (CIPPIC) and the Public Interest Alliance of Canada; the Toronto Star also published one critique (Geist, "Will Copyright Reform Chill Free Use of Web?" 2004). In response to questionnaires on digital issues CIPPIC circulated during the election, the Liberals, New Democrats, and Bloc Québecois all more or less paraphrased the Interim Report. The Conservatives did not answer, and only the Green Party articulated an independent platform. See,, and Geist, "Parties the Same?" 2004.

3. For example, the Project for the Protection and Repatriation of First National Cultural Heritage at University of Alberta is exploring various issues including the "recognition and enforcement of customary law" ( At the symposium on Traditional Knowledge, Intellectual Property, and Indigenous Culture at Cardozo Law School in 2002, several participants advocated alternatives to "western" intellectual property law with its tenets of fixation, limited terms, and individual ownership. Other participants, however, noted that however sensitive to local cultural conditions some of these alternative regimes might appear to be, they might in practice intensify local, national, or international power imbalances. Of course Canada is proposing no radical revision of copyright, but there may be some common ground in the problem of unintended consequences. See Yu, 2003; Riley, 2000; Coombe 1998.

4. Although the Canadian Recording Industry Association (CRIA) is nominally independent from the Recording Industry Association of America (RIAA), just as BMG Canada (for example) is independent from BMG USA, the vast bulk of cultural materials sold in Canada originate in the United States, and thus the interests of the Canadian recording industry are essentially identical to the interests of its parent companies. In Canada, the Juno Awards provide an annual opportunity for bonding between government and the branch–plant recording industry for which there is no "user" equivalent. Corporate lobbyists may hold a great deal of power in intellectual property expansion, as has been demonstrated by Susan K. Sell in the case of the TRIPs agreement (Sell, 2003), but as Sell has pointed out they are effective partly because their interests are made to harmonize with other interests in the negotiating environment. In the present case, I am arguing that the already–established rhetorical patterns of Canadian cultural policy discussion provide a climate very congenial to the interests of copyright owners.

5. The Liberal Party has held power in Canada for 68 of the past 100 years, and much of Canada’s cultural policy has roots in the Liberal governments led by Pierre Trudeau in the 1970s and 1980s; for this reason, it is difficult to separate Liberal Party cultural discourse from Canadian government cultural discourse.

6. The phrase "our creative people" is common in Ottawa: see for example MP Christiane Gagnon’s question in the Heritage Committee: "How are our creative people going to be able to earn a living if their work is given up for free?" (House of Commons Standing Committee on Canadian Heritage, 27 April, 2004). (It should be noted that the outburst was unfounded: nobody was talking of making artists work for free.) The 2004 Speech from the Throne, delivered by Governor General Adrienne Clarkson, noted that "Canada’s artists and cultural enterprises are among our best ambassadors, as well as being an increasingly dynamic element of the knowledge economy. Their work holds a mirror on our society and builds a legacy for future generations" (Government of Canada, 13). The idea that "Canada’s artists" are "our best ambassadors" sounds good, but suggests strings attached, since ambassadors have to follow Ottawa’s instructions; the claim that their work is essentially mimetic also deprives them of independence. The mixture of celebration and cooptation is reminiscent of the dynamics of another common phrase in Canadian political discourse: "our Native people."

7. Industry Canada commissioned an economic analysis of the impact of WIPO ratification on Canada (Boyer, 2003, and see more focussed studies at–dppi.nsf/en/h_ip01070e.html). The members of the Heritage Committee — again, the main locus of public consultation on copyright in Canada — have shown no awareness of the existence of it, but in any case it is entirely inconclusive. Boyer claims that ratification would benefit rights–owners, but he admits that "the available data are at best fragmentary, partial and most of the time very incomplete and unreliable" (5). Boyer fails to note that the interests of Hollywood are not the same as the interests of a small poetry publisher, and the interests of Céline Dion are not the same as the interests of an experimental film–maker. In my view, the copyright reform discussion as a whole does not adequately mark the distinction between Canadian–made cultural products and cultural products sold by Canadian companies (in most cases imported) — a distinction key in any discussion of the impact of new policies on Canadian cultural production.

8. See Jones, 2000. Québec nationalism presents an even stronger version of the "artists as the voice of the nation" rhetoric than federalist discourses. A Parti Québecois’ "Declaration of Sovereignty" was read aloud by the folk singer Gilles Vigneault to launch the most recent (unsuccessful) referendum on Québec independence in 1995. In this manifesto, artists are not even granted status as mouthpieces but are rendered unnecessary by the sheer self–propelling power of language and culture: "Our language celebrates our love, our beliefs and our dreams for this land and for this country ... Our culture relates our identity, it writes of us, it sings us to the world" (Parti Québecois, 1995).

9. Such rhetoric is not only found among politicians. Arts critic Max Wyman has recently dedicated a whole book, complete with policy recommendations, to the argument that "Canadian culture, the imaginative expression of our shared lives and aspirations, is the heartbeat of our people" (Wyman, 2004, p. 5).

10. BMG Canada v. John Doe, at 25.

11. Section IV: Remedies: Civil Remedies, 36.

12. House of Commons Standing Committee on Canadian Heritage, 11 March 2004.

13. For an incisive critique of Canadian content regulations, see Wright, 2004, chapter 3.

14. Industry Canada, 2001, pp. 8–9.

15. On the widespread lack of definition of the public domain in property–oriented copyright discourse, see Litman, 1990; and, Boyle, 2002.

16. See–prda.nsf/en/h_rp01105e.html#sub.

17. CCH Canadian Ltd. v. Law Society, para 24.

18. Théberge v. d’Art du Petit Champlain, para 32.

19. Compo v. Blue Crest Music, 1980, at 372–373, cited in BMG Canada v. John Doe at 23, and CCH Canadian v. Law Society at 9.

20. Vaver, 2000, p. 7.

21. Théberge v. Galerie du Petit Champlain, para 31.

22. Smith, 2004, E5.

23. One organization that does articulate a difference between rights–holders’ interests and those of creators specifically is the Creators’ Rights Alliance: in Canada, it can be found at http://www.cra–

24. Swartz, 1992, pp. 506–508.

25. Heritage Committee, Interim Report, p. 19.

26. Rose, 1998; Rose, 1993, p. 39.

27. The same argument could be made about real property: property law does not actually protect property itself, but rather people’s rights to it. Classic property law teaches that private land ownership is the best way of using land, but this is clearly not always the case.

28. Lessig, 2004, pp. 223–225.

29. Canadian Culture Online National Advisory Board, 2003, p. 16.

30. Many other examples lie beyond this one report. One might for example study the campaign (ultimately unsuccessful) by the heirs of Lucy Maud Montgomery to have copyright extended in the unpublished writings of certain long–dead authors (see Adams, 2004), or the arguments presented in Copyright Board hearings about the Educational Rights Copyright Collective (Copyright Board, 2001), or the history of the Canadian Private Copying Collective that collects levies on blank media on the presumption that they are being used to store copyrighted material (see Hamilton, 2004). The rhetorical patterns are similar in hearings connected to all these initiatives or policies.

31. Standing Committee ... , 2004, p. 23.

32. Ironically, it was Susan Peacock, an opponent of the educational organizations’ viewpoint, who presented at the Heritage Committee an argument that educational Internet use is actually legal: "sections 29.6 and 29.7 [are] an exemption that’s been there for a few years, and it allows educational institutions to make a copy of any work at the time it is communicated to the public. It doesn’t say "when it’s broadcast". Originally that’s what we thought it meant, and we called it the off–air taping exemption. As it turns out, because of the broad, technologically neutral language of the exemption, it includes material that’s made available on the Internet. So we already have an exemption that allows educational institutions to copy that, put it on a slide, project it, and let the whole class see it at one time; that sort of thing is there already" (House of Commons Standing Committee on Canadian Heritage, 27 April 2004).

33. BMG v. John Doe, para 25.

34. A review study by Prof. Daniel Gervais of University of Ottawa about Collective Extended Licensing is a case in point: it provides an exhaustive and careful survey of administrative issues and international comparators on the subject, without ever addressing the question of fair dealing or the realities of Internet content and patterns of use (Gervais, 2003).

35. CCH Canadian v. Law Society, at 48.


37. Access Copyright periodically offers an online course on copyright principles, advertising it in newspapers in threatening terms: "Copy this Ad or Take Our Course. Either Way, You’ll Learn about Copyright Law." For other advertising along these lines, see

38. Chicago Manual of Style, 4.58.

39. I thank Kevin Massie for arguing this point in our discussions.

40. During what WIPO has declared "World Book and Copyright Week," Access Copyright celebrated "Canada Book and Copyright Week" in 2004 by running a contest in which students were invited to write a fairy tale or fable teaching about copyright compliance: for the results, see This is an amusing tactic but hardly likely to win hearts and minds.

41. I was led to this source via the Creators’ Rights Alliance Web site (http://www.cra–; they, however, only cite the first (creators’ rights) provision, which amounts to an inaccurate representation of the Declaration.



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Editorial history

Paper received 26 July 2004; revised 20 August 2004; accepted 8 September 2004.

Copyright ©2004, First Monday

Copyright ©2004, Laura J. Murray

Protecting ourselves to death: Canada, copyright, and the Internet by Laura J. Murray
First Monday, Volume 9, Number 10 - 4 October 2004

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