Chapter 2

Interests in the Balance 
Teresa Scassa 

The starting point for any exercise in legislative reform should be a consideration of the policy underlying the legislation. After all, the reforms should further the underlying public policy objectives. In Canadian copyright law, however, not only has the public policy underlying the legislation been unclear since the law’s inception, it has become even murkier in recent years with competing and often contradictory articulations from policy makers and the courts. As we stand once again on the eve of significant copyright reform in Canada, it is useful to step back and examine the policy underlying the legislation. 

Most recently, copyright law in Canada has been referred to as a balance between the interests of creators and users of works. Other iterations of the balance have made reference to a broader societal interest as well. Yet such statements are far from being an adequate articulation of the interests in the balance. Little attention has been given to defining who “creators” and “users” are or to identifying the societal interests that are at play. Further, the expression of balance between users and creators overlooks another important—if not crucial—interest: that of owners. In the commercial marketplace for copyright works, it is rare that the copyright owner in a work is actually its creator. Many of the most significant groups pressuring the government for copyright reform represent copyright industries, and thus, the interests of copyright owners are central to public policy considerations. Although their interests are often conflated with the interests of creators, it should not be assumed that they are the same. 

In this chapter, I will explore the underlying purpose of Canadian copyright as a balance between a series of competing interests. I will argue that there are many different types of “users” of copyright works, just as there are many different types of “creators.” I will explore the interests of “owners,” as well as the diversity of societal interests in copyright law, including interests that compete with the private property rights created and protected by copyright law. I will centre this analysis in the context of the massive technological changes brought about by digitization and the Internet. Ultimately, I argue for a more textured view of the competing interests at play in copyright policy. 


About the Author: 

Teresa Scassa, B.A. (Conc.) 1984, LL.B, B.C.L. (McGill) 1988, LL.M. (U. of Mich.) 1990, S.J.D. (U. of Mich.) 1996, is an Associate Professor of Law at Dalhousie Law School and the Director of the Law and Technology Institute at Dalhousie. She is a member of the Nova Scotia Barristers’ Society. Professor Scassa is co-editor of the Canadian Journal of Law and Technology, published by CCH Canadian Ltd. She is also a co-author of the bi-weekly IT.Can newsletter. She teaches and conducts research in the areas of intellectual property law, property law, and law and technology. She is the author of numerous articles on topics ranging from intellectual property law to personal information protection. Recent publications include a book co-authored with Michael Deturbide titledElectronic Commerce and Internet Law in Canada, (CCH Canadian Ltd, 2004) and the following recent articles: “Recalibrating Copyright Law?: A Comment on the Supreme Court of Canada’s Decision in CCH Canadian Ltd. v. Law Society of Upper Canada” (2004) 3 Canadian Journal of Law and Technology 89; “Originality and Utilitarian Works: The Uneasy Relationship between Copyright Law and Unfair Competition” (2004) 1 Ottawa Technology Law Journal 51.