Technological Neutrality: Toward Copyright Convergence in the Digital Age
Siu, Kevin P., University of Toronto Faculty of Law Review
ABSTRACT I INTRODUCTION II WHAT IS TECHNOLOGICAL NEUTRALITY? Technological Neutrality in Canadian Jurisprudence The Problem of Perspective III CONVERGING TECHNOLOGIES IV DANGERS OF NON-NEUTRALITY IN COPYRIGHT LAW Video Streaming, Cable Television, and Copyright Law Pitfalls of Technological Uncertainty V CONVERGING THE COPYRIGHT ACT Structural Barriers Against Neutrality in Copyright Law Toward a Singular Right VI CONCLUSION
The principle of technological neutrality is an interpretive tool that has been used to maintain a balance between creators and users of copyrighted works without imposing undue restrictions on new innovations. (1) As technology continues to evolve, the principle will play an ever-larger role in ensuring that copyright law remains relevant and effective.
On July 12, 2012, the Supreme Court of Canada issued five judgments on copyright law, (2) many of them settling issues related to the application of the Copyright Act (3) to Internet-based technologies. The principle of technological neutrality played a central role in these decisions, most prominently in ESA v SOCAN (4) and Rogers v SOCAN. (5) All five judgments, however, were made in the context of copyright laws that largely predated the Internet revolution. (6)
On November 7, 2012, the Copyright Modernization Act (7) was proclaimed into force by Parliament, the culmination of a decade-long effort to update Canadian copyright law for the Internet age. The new amendments to the Copyright Act provided more rights for both authors and users, and added several provisions specifically aimed at Internet-based activities. While the amendments provided greater certainty to some areas of copyright law, the Copyright Act has arguably become more technology-specific. As will be discussed, this legislative direction may give rise to problems in applying case law.
The purpose of this article is to examine how copyright law can best develop in an era of fast-paced technological innovation. I will examine the importance of the principle of technological neutrality in Canadian copyright jurisprudence, and discuss how the development of technology has affected copyright law. I will then explore how the discriminatory application of copyright law to different technologies can lead to economic and technological inefficiencies. Finally, I argue for a broader application of the principle of technological neutrality and propose that copyright law would be better served by a shift from the bundle of rights approach to a general right to commercially exploit original works.
II WHAT IS TECHNOLOGICAL NEUTRALITY?
Technological neutrality is an interpretive principle that has been viewed by its proponents as an essential mechanism in ensuring that new technologies are not hindered by copyright law. (8) The principle has been adopted by courts in order to apply the Copyright Act to technologies that may not have been envisioned by Parliament at the time the legislation was drafted. (9) Older case law has referred to this principle as "media neutrality", which was defined in Robertson v Thomson Corp (10) to mean "that the Copyright Act should continue to apply in different media, including more technologically advanced ones". (11) A similar definition was provided by the Supreme Court in ESA, describing the principle of technological neutrality as requiring "that the Act apply equally notwithstanding the technological diversity of different forms of media". (12) This principle is based on the wording contained in section 3(1) of the Copyright Act, which describes the right to produce or reproduce a work "in any material form whatever". (13)
In other words, the principle of technological neutrality means that copyright law should apply in an equal manner to different technologies that express the same work. The Copyright Act should not attach more (or less) copyright liability based solely on the technology used--a photocopy of a book should, in theory, be equivalent to a digital copy of the same book for the purposes of the Copyright Act. …