Outdated copyright law hindering innovation
History shows flexible exceptions CAN spur Creativity, writes Meera Nair.
Where might billion-dollar industries be found?
As the summer recess ends, members of Parliament are returning to Ottawa to resume the business of the nation, including a review of the Copyright Act.
Judging from transcripts of earlier meetings, tensions are running high among stakeholders. The general dispute is one of control versus legitimate unauthorized uses, with education being a particularly thorny issue.
This is not new. From the 18th century on, educational allowances were deemed unfair to starving authors. However, the control available by copyright has only expanded over the past 300 years. If authors are still starving, perhaps it is time to acknowledge that copyright alone cannot assure their well-being.
As MPS wrestle with this review, they might consider a different perspective concerning copyright: that it is not only about what we read, view or listen, but how we read, view and listen.
Media development is enabled by statutory exceptions to copyright. Those spaces where content is unprotected allows new media to thrive, legitimately, to the benefit of a country’s economic and creative growth.
For instance, in the early 20th century, player pianos were in vogue. That success is directly attributable to a copyright law that did not protect music conveyed in a mechanical form. Historian Harvey Roehl documented the sales figures of the North American player piano industry. At its heyday in 1923, more than 347,000 pianos were produced and sold, representing more than $100 million in sales (in today’s American dollars, approximately $1.5 billion).
Another media technology worth remembering is the videocassette recorder. American film executives fought it tooth-and-nail, but in 1984 the United States Supreme Court ruled that the equipment was lawful.
By the 1990s, the film industry was praising the new markets made available by the technology. Drawing from data compiled by the U.S. Department of Commerce and the U.S. International Trade Commission, domestic sales of films sold directly to North American consumers reached $2.5 billion in 1992, and earnings from global markets approached $5 billion in 1993. All this out of a technology that Jack Valenti, then-president of the Motion Pictures Association of America, likened to the Boston Strangler.
With respect to contemporary technology, MPS might find U.K. research to be helpful. In 2010, then-prime minister David Cameron ordered a review of their intellectual property law, with the intent of enhancing innovation and creativity.
In the ensuing report, lead investigator Ian Hargreaves wrote, “Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth? The short answer is: yes.”
In an interview a year later, Hargreaves explained that Cameron was particularly interested in the role exceptions had played in the development of search engines, namely Google.
During this past summer, social media were buzzing in anticipation: would Google become the first trillion-dollar company? Apple emerged the winner. Regardless, lawmakers should not forget that Google drove the creation of its parent company Alphabet, which employs nearly 90,000 people worldwide.
Of course, billion-dollar media industries with plentiful jobs do not arise solely from flexible exceptions within copyright. However, such industries could not arise without them.
Many stakeholders will criticize any exception to the grant of copyright. The claim will be that creativity will be stunted; that we risk losing our authors, artists and musicians. History tells a different story. Exceptions and new media spur creative effort. MPS might find strength of resolve through the work of Nick Mount, a professor of English at the University of Toronto. His book Arrival — the Story of Canlit (2017), illustrates that general economic prosperity enabled Canlit to reach the success we see today, and concludes by saying Canada “is producing many more writers and many more books than ever before.”