I spent yesterday afternoon at an excellent conference in Ottawa on the Copyright Pentalogy. I was among the contributors from the collection on the pentalogy edited by Michael Geist who gave presentations. I was also the only non-copyright lawyer who spoke. Regular readers will not be surprised that I urged deference from the courts to the Copyright Board.
provoked an excited reaction from other presenters and attendees, much
of it in the corridors and during the coffee breaks! The vast majority
of experts in copyright law do not think much of the Copyright Board's
"expertise". They applaud the Supreme Court of Canada's decision to take
the reins of copyright law, suspecting that beneath the technical
justifications for refusing to defer lies an appropriate disdain for the
The running theme of the criticism
was that members of the Copyright Board are not nominated at all for
their expertise -- legal or otherwise -- and have not spent time working
in areas which would allow them to develop in-depth knowledge of
intellectual property issues.
Another important point --
in fairness to the Copyright Board -- is that it is difficult to
persuade people to take on what is seen as a thankless task. The highly
technical proceedings before the Copyright Board are quite a few steps
removed from the glamour of the Emmys.
Am I shaken from my pro-deference position by these concerns? Not really (yet...).
first answer to the criticism is that the problem is essentially a
political and cultural one. If the government nominated people with
greater expertise in copyright law, then the Board would be better off.
If people with expertise in copyright law put themselves forward for
consideration, then the Board would be better off. But these are
political and cultural problems, which should be resolved by the
political branches and members of civil society.
The second answer to the
criticism is that we should not be too quick to assume that lawyers have
some sort of magical prowess when it comes to questions of copyright
policy. Over the centuries, legal experts have built up a superstructure
of impressive-sounding legal principles and precepts. It must be
dreadful to see these mangled by non-lawyers!
base, many of the questions that come before the Copyright Board are
essentially questions of fact and policy which do not require legal
knowledge as much as they require practical wisdom.
Copyright Board often explains decisions based on practical wisdom in
terms that fit uneasily (or not at all!) with the body of copyright law
built up over the years. But as the Supreme Court of Canada has wisely taught, reviewing courts should not engage in a "line-by-line treasure
hunt for error". If a conclusion falls within the range of reasonable
outcomes, it should not be disturbed solely because some of the
decision-maker's reasoning was suspect.
Unsurprisingly, these "first, kill all the lawyers" responses didn't go over very well yesterday! I wonder what those from other fields think.