“In defence of copyright”

November 3, 2023

If ‘The Copyright Channel’ was a television show, no one would watch it. Too cerebral by half.

Yet the rights of media creators and sellers —contested by the public’s eager and unlicensed consumption of content— keep popping up in any number of the pressing media policy issues of the day. High-budget movies are pirated. Studio music is illicitly streamed or downloaded. Google can re-publish a portion of a book without the author’s consent. Universities provide free course materials to students after eluding the Copyright Act’s licensing framework to compensate individual authors. Even the Online News Act Bill C-18 involves copyright issues.

University of Calgary academic Hugh Stephens thinks this state of affairs is kind of nuts. “It is a sad commentary on today’s state of affairs,” he begins his new book In Defence of Copyright, “that there is a need for a book defending copyright.”

Stephens might not have written this book 15 years ago. But a lot has changed in the world of intellectual property. One thing is the technological capacity of content sharing software and the Internet trade in pirated digital goods. Another thing is the 2012 amendment to Canada’s Copyright Act that boosted the public’s opportunity to possess copyrighted works they don’t pay for, so long as it is claimed the works are being consumed for “private research and study.”

The origin of “intellectual property”—at least in the English-speaking world— goes back centuries in British common law and is thought to begin with John Locke’s concept of property, that humans mix their labour in nature and produce an inalienable invention (clear a forest, invent the telephone, write the great Canadian novel). But the “property” metaphor has never completely taken hold: perhaps it’s easier to prove a thief stole a goat rather than the expression of an idea.

At its roots, Stephens reminds us, copyright fosters the economic incentive of creators to come up with a good idea, express it in recognizable form, and spend the commercial winnings on the next invention. Unlike the goat, absolute ownership of intellectual property doesn’t exist: copyright expires after a century and even before that it can be lawfully purloined for “private research and study.” Free goat’s milk, as it were.

The fun thing about Stephens’ book is he’s a good writer and a better storyteller. You won’t be bored and your eyes won’t glaze over on the technical descriptions of copyright (he doesn’t dive too deep into the legal stuff, for that you might check out Lesley Harris’ Canadian Copyright Law.)

One story he tells with evident frustration is the successful dismantlement of the tariffed royalties that Canadian universities used to pay to authors for the licensed distribution of their educational materials to students. The Supreme Court of Canada allowed universities to withdraw from this collective licensing regime administered under the federal government’s copyright board, leaving hundreds of individual authors the option to hire lawyers to sue for copyright infringement. The universities, Stephens notes, now pay as much in administrative costs to manage their infringement liabilities as they did in royalties.

The university’s victory was celebrated by advocates of “users’ rights,” most volubly by the University of Ottawa’s Michael Geist. Stephens is miffed by academics who lean hard against copyright while drawing public salaries to support their own writing:

Many copyright holders are determined to protect their economic interests. After all, for many, it is their sole or primary livelihood…But for some authors, economic return is not their primary consideration. Many are academics who are paid to undertake and publish research. You might say that it is part of their day job. Many of these academics are also in the forefront of opposition to strong copyright laws from a philosophical perspective, arguing that copyright law gets in the way of the free sharing of knowledge. It is easy to argue for free information if your work is subsidized in some other way.

Stephens footnotes that paragraph to the Creative Commons project whose sponsors advocate for authors to pre-emptively license their work for free public distribution. That includes an endorsement from famed Canadian author Cory Doctorow:

As a writer, my problem is not piracy, it’s obscurity, and [Creative Commons] licenses turn my books into dandelion seeds, able to blow in the wind and find every crack in every sidewalk, sprouting up in unexpected places.

I would just note here that I paid full price for my copy of Mr. Doctorow’s last book.

Where next? The importance of copyright, and campaigns to limit it, is likely to intensify again with the surge of content-scraping Artificial Intelligence products made available on Tech platforms. Stephens’ book is a good preparation for that debate.

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