Has the Copyright Act become outdated in a new digital era?
Once upon a time, it was commonplace for consumers to pop into their local shops and browse through collections of used records, CDs, movies, books, or whatever other media were available for purchase. Students would resell their used textbooks to get back a portion of the initial price paid for them, and Nirvana fans could pick up a used copy of In Utero without feeling like a sellout for paying the full twenty-some-odd dollars for it. All the while, original copyright holders would benefit from the exposure their works gained by increased access to consumers and the public. In this respect, secondary markets provide economic benefits to both owners and users, furthering public policies toward ensuring public access to creative works, as well as respecting the property rights that are associated with these tangible works. In their traditional form, in so far as they facilitate the distribution of tangible goods for resale, secondary markets operate to fulfill the underlying principle of intellectual property law: balancing the competing interests between content creators, users, and the public domain.
It might seem like a foregone conclusion to the younger generation today that this same model ought to be applied within today’s digital environment. History has shown that copyright law has continually adapted, either judicially or through legislation, to changes in technology from the printing press, to radio and broadcast, to photocopiers. Why should the internet and digitization prove to be any different? Rather than lending a friend their dog-eared and highlighted copy of last year’s biology textbook, current users might simply transfer the e-book to a friend’s iPad or Kindle instead. However, given the current state of copyright law, these users might be shocked to find that while lending the physical textbook is permissible, transferring a digital version of that same textbook would leave them liable for copyright infringement.
“Users have developed a set of expectations regarding digital works.”
Traditional understandings of owning a physical copy of a creative work generally include such rights as unlimited use and the ability to transfer or dispose of the copy without the copyright owner’s authorization. These rights are shaped, in part, by the conventional understandings that society holds about the ownership of physical property. It has been said that copyright law does not so much expressly build in such incidents of copy ownership, as it accepts and assumes such incidents as given. In other words, the rights associated with tangible objects have been defined by laws relating to personal property, with copyright law merely imposing a limited set of restrictions. However, the bundle of rights associated with digital copies is currently not synonymous with those attributed to physical copies. Where owners of tangible objects hold rights that stem from a clear separation of the physical property from the intellectual property, owners of digital works appear to have very little rights at all in the absence of such a separation. Justifications for this distinction should be based on policy considerations and not left merely as the result of a changing technology. The fact that a copy takes on a digital form should not, by itself, prevent it from being viewed as personal property in the same way as a tangible object.
Users have developed a set of expectations regarding digital works that derives from what they have already become accustomed to from owning tangible forms of creative works. The majority of users have a legitimate interest, not only in simply having access to a wide variety of creative works at low cost, but also in being able to use, manipulate, and share those works so as to be able to derive new meaning.
Where the beliefs held by users about the rights they have in relation to digital works are in conflict with the established legislative framework, this should lead to a re-evaluation of the allocation of those user rights. To the extent that copyright law departs from the common understanding of digital copy ownership, the enforcement costs will potentially be quite high. Looking to the prevailing attitude among younger generations of users shows an absence of social norms that deter end-user infringements with respect to digital copies. In order to avoid a pervasive disrespect for the law, Canada’s copyright policies ought to better reflect the conventional understanding that users hold about owning digital works. Where copyright respects this understanding, it has the potential to facilitate the development of a standard default bundle of rights associated with digital copies and lower enforcement costs.
At the current moment, any attempts to bring the realities of a digital environment in line with copyright law’s objectives are hampered by two general obstacles: those relating to the current state of technology and those relating to the current state of the law. Although, it could be said that the legal obstacles are merely a consequence of current technological limitations and therefore any efforts to find solutions that address the current state of technology would likely resolve the legal challenges as a result. In other words, the problems in realizing a workable framework that provides users the right to dispose of digital works are a matter “of statutory interpretation mixed with a technical question of how a digital transfer is actually accomplished.” With rapid development in the state of technology, it is likely only a matter of time before this issue will reach a point where it must be addressed. In fact, both Apple and Amazon have already applied for patent protection on content management systems that would facilitate the resale of digital works. In addition, ReDigi was also recently granted patent protection for a similar management system that includes a method for “atomic transactions”–a cloud-based system that is able to perform instantaneous transfers without making a copy of the file. These developments seem to indicate a recognition of the commercial viability of creating a secondary marketplace for digital works and suggest possible attempts to monopolize that market–or possibly, to stymie its creation.
Further compounding the issue is the fact that without any concrete guidance from Parliament, current sales of digital works are primarily governed through the use of Digital Rights Management (“DRM”) solutions. There is a shift that is currently taking place whereby consumers are increasingly trading ownership of the content they purchase for perpetual access to its use through reliance on licensing agreements. It would appear that within the digital environment, contract law is increasingly supplanting copyright law at the potential expense of users’ rights. The terms of these end-user license agreements (“EULA”) are often characterized by a significant imbalance between user and owner interests.
While Canada does offer consumer protection legislation across all provinces, as well as additional protection found within the common law, unfortunately, these controls over unfair agreements are often inadequate and fail to provide a comprehensive framework that fully protects consumers. Further, as traditional forms of creative works are replaced by their digital counterparts, and as sale-controlling EULAs increase, we face the possibility that, in time, a majority of our culture’s knowledge and creative expression will be centralized and locked within a realm that is controlled by copyright owners. Without addressing the unique challenges that characterize the dissemination and consumption of digital works, it could be said that the Copyright Act, in its current form, is failing to achieve the policy objectives it purports to advance.