Illustration by Kagan McLeod

Canada's copyright laws are about to be overhauled, and everyone has a different idea to balance commerce and creativity. The gloves are off.

On a cold December day in 2007, federal Industry Minister Jim Prentice was hosting a holiday open house at his Calgary constituency office. Despite the festive season, Prentice found himself surrounded by about 60 parka-clad activists — reporters, cameras, and microphones in tow. Instead of holiday cheer, they came with questions about Bill C-61, a bill amending Canada’s copyright laws. It’s hardly an issue you’d expect to be the cause of civil unrest.

At Prentice’s pancake breakfast at the Calgary Stampede the next fall, the protesters were back. This time they had placards and T-shirts that read, “Bill C-61 makes everyone copyright criminals!” and “C-61 Anti-Competitive.” The protesters included software engineers, teachers, and dreadlocked university students — a few of them even lined up for pancakes.  

Not long ago, a copyright protest would have seemed like a piece of absurdist parody (“Actuaries of the world, unite!”). But the federal government has made it clear that it intends to rewrite Canada’s creaky copyright laws, and in a world awash with media, everyone has something at stake. Creators want to be paid for their creativity, while consumers want to enjoy, share, and re-purpose it. Copyright has never been as clear as property rights, and deciding what’s legal hasn’t always been easy. In fact, it’s turned into a very public, very bitter tug-of-war — an out-and-out copyfight.

Copyright is all about copies: who’s allowed to make copies of a creative work, and who’s allowed to sell them. In Gutenberg’s day, making copies meant owning an expensive printing press and having access to distribution. Not anymore. In today’s digital world, the duplication of media is fast, free, and easy. In less than a decade, new technology and the Internet  haveupended entire industries (hello there, music and journalism), and the question of copyright has taken on a new urgency.       

“You can think about copyright law like rules for other marketplaces, like the securities market or the business market,” says Barry Sookman, Co-Chair of the Technology Law Group and partner at McCarthy Tétrault. He has argued copyright cases before the Supreme Court and is a vigorous supporter of stronger copyright laws. Without clear laws, he argues, investors don’t invest, and creators have little incentive to create. According to Sookman, the net effect is a stunted culture. “If you don’t get anything produced in the first place, you don’t get to that second point of saying, my God, they’re being restricted.”               

But technology’s effects on the copyright debate didn’t begin with the Internet. “This is an old, old song,” notes Howard Knopf, a lawyer and copyright commentator who practices with Macera & Jarzyna LLP. “The piano roll was going to put composers out of business. And then radio was going to put performing musicians out of business. Television was going to put talking films out of business. Believe it or not, there was an effort to stop the long-playing record.”

Rewriting Canada’s copyright laws is not just about preventing teenagers from downloading music or ripping movies to their iPods. It’s about how we protect and encourage creativity. But the answers are not easy.

Should copyright holders be able to sue those who violate copyright for huge statutory fines? South of the border, the Recording Industry Association of America (RIAA) has sued thousands of people for sharing music online. In Canada, media companies and distributors worry about lost revenues from file sharing, and warn that their industries will collapse without a real deterrent. Others believe that the model for traditional media sales has changed, that file sharing actually drives sales up, not down, and that the industry has to change to survive.

There is also a larger debate about creativity. “Copyright was intended as a replacement for patronage, where you only got to make art if you could convince some rich and powerful person to fund it,” says Cory Doctorow, co-author of BoingBoing.net, and an advocate for more open copyright legislation. “But as copyright’s monopoly on expression has grown ever more concentrated, we’ve come full circle to a system of patronage that puts four record companies in charge of several genres of music. This does not serve artists, creativity, or culture.”