April 20, 2006

Oh Canada, our neighbors who don’t like to sue

Category: Books/Articles,IP Law,Liberalism — @ 12:07 pm

So, as readers of this blog know, I am deeply enmeshed and invested in a project that examines the cultural face of liberalism through such avenues as law, technoscience, and medicine. As part of this endeavor, I am interested in signaling and understanding the tensions in liberalism within one context (such as IP), one nation (as in the US) or across times and places.

Because I am going to this conference on Invention and Authorship at Case Western (am already in Ohio partaking of my family and the beautiful budding flowers of spring), I am revisiting these ideas as I chomp through all the marvelous papers that were pre-circulated.

And the theme of tensions in liberalism arose palpable during a visit at the CCA with Laura Murray an English professor who teaches at Queens College and runs the impressive Fair Copyright website, which every Canadian scholar should comb through, carefuly.

We read a her First Monday piece Protecting ourselves to death as well as another fascinating piece on Canadian copyrightTaking User Rights Seriously.

The session and her talk were quite interesting and my first real introduction to copyright’s life in Canada. Unsurprisingly, given the different role of the state as protector of certain rights (like health care) and a certain healthy suspicion of the US and its policy (and this is nicely explored by Murray), copyright is distinctly configured, with lines of similarity and diffferences. For example, IP provisions are not part of the Constitutional charter, the equivalent of fair use (“fair dealing”) is more circumscribed, universities often cower at what is perceived threat (she told us an amazing story about Simon Fraser’s draconian copyright policy that implored students to get permission for *every* citation, sigh), yet a a recent Supreme Court case came down very favorably strong for user rights and public interest.

By the end, it was clear that while there are similarities (and these will grow, I imagine, with “harmonization” via WIP0. TRIPS etc. but for reasons I state below, perhaps not), the life of IP is textured uniquely. And while there are differences in the law, point blank, some of the more interesting differences follow from non-legal conditions or legal factors quite independent of IP. And these are worth pointing out because they also give us a unique vantage point to really get at the motor behind SO much of American law, in general, and IP law, in specific.

During her visit, Laura Murray raised three (probably more but I am going by memory here) important differences, which were further elaborated during the disucssion:

1. Due to how governments congeal (through coaltions) and how they execute change, (apparently legal change/policy moves more slowly), this had led to change whose viscosity is more like molasses than oil in our country and often has worked in the favor of public interest and user rights in IP.
2. The Media still works in a more robust way than in the US in that it will shame and, shame some more, the government over things like IP so that they act as a constraint.
3. And in comparison to the US, the culture of litigation/lawsuits has a shadow of a life compared to the US.

So in fact much of the policy in Canada has little to do with the actual law of IP but with other legal factors or extra-legal factors. On top of this, it also made me realize that since things are stalled and since activists do and often compare things with their southern neighbors, I also wonder if activists are better positioned to actually intervne in this field than we are in the US, where things move quite fast, the media in general does not act as a lightning rod of shame (except for the Daily Show and Colbert Report, but I am not sure, yet, if we should count those as media) and even if the media does not shame, they rarely present IP as a pressing societal issue. Given these conditions, it will be very interesting, to the development and changes in IP in Canada following the pressures to harmonize.

Finally and this is perhaps to obvious to merit attention because it is signaled through the recognition that US law is largely case law, but lawsuits do truly generate so much of the law and are one of the central contexts underwhich we culturally understand (as I mean the proverbial citizenry “we”) the law. If anyone out there knows of any good articles/books that explores this, especially from a cultural, critical, or political perseptive, give me shout out… I would like to delve more into how this acrimonous and expensive (and potentially in some cases empowering) contextual matrix shapes US law.

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