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A Tale of Two Copyright Inquiries

I wish to consider two copyright initiatives currently underway in Canada and the United States, as they bear on changes in intellectual property law, and hold lessons for my efforts to increase public access to research and scholarship. Researchers are identified as a concerned party in the Canadian instance, while the American example, if tangential to scholarly publishing, still raises questions about copyright today that only serve to encourage my own thinking about copyright reform.

On July 16th, 2021, the Government of Canada issued A Consultation on a Modern Copyright Framework for Artificial Intelligence and the Internet of Things on the broad principle that “to keep pace with these technological disruptions, copyright law has had to respond and adapt.” The government has again provided a detailed statement of the issues, identifying, for example, how “TDM [text and data mining] allows researchers and analysts to gain knowledge at a scale and speed that would be impossible to achieve manually, thereby making research more efficient and effective.” This consultation is concerned with how this new technology has introduced “technological protection measures,” that can restrict such research activities as searching bibliographic databases for relevant studies where one has not purchased access to such sources. Then, in the case of artificial intelligence (AI), the necessary TDM strategies needed for machine learning raise questions about intellectual property rights that the law has yet to address. In a “call for evidence and possible ways forward” the consultation begins by boldly asking, “What barriers does the [Copyright] Act pose for TDM?” The starting assumption here is that the law is not only out of touch, it is impeding a powerful source of discovery and invention, which is what copyright is intended to encourage and protect.

The consultation process, which closed on September 17, 2021, solicited a call from scholars to keep copyright out of TDM and AI to spare this space from being locked up in proprietary protection of limited-term monopolies. The scholars propose that text and data mining should not be restrained by technological protection measures nor infringement threats, and the texts generated by AI should not be subject to the copyright protections reserved for human authorship. The Consultation document holds that such constraints will “support Canadian researchers,” which is among the government’s strategic priorities “in the post-pandemic recovery.”

Nearly four months after the Canadian consultation was launched, on October 12th, the United States Copyright Office issued a Notice of Inquiry on copyright protections for news publishers by request of Congress. The Notice includes a substantial, well-documented supplement that analyzes the issues involved in collecting, producing, and aggregating (think Google and Facebook) the news. It reviews journalism’s woes: the readership fall, loss of journalists, and the drying up of ad revenue. An institution and an enterprise so fundamental to the making of this democracy is being failed by the law intended to preserve and protect it. In that spirit, the supplement questions copyright’s current effectiveness and what it fails to protect – “facts and ideas are not copyrightable… nor are titles and short phrases, including headlines” – including the wholesale aggregation of news. The Notice pointedly asks about creating a new legal category for “press publishers,” extending the law to cover headlines, and instituting remuneration rights for aggregating news stories.

If the Canadian consultation is motivated by the law’s failure to keep up with twenty-first computational advances, the American inquiry is propelled by democratic interests in ensuring that the press survives the century and then. If both governments now seem intent on change, with their blunt questions about copyright obstructions, it is a small comfort to know that this has only come well after both had legislated digital-era copyright reforms for gaming, videos, and cellphones.

Now, should the public input invited on these AI and press copyright issues earn one or both of them their moment of legislative reform, I happen to have another digital reform waiting in the wings. As I have been arguing in this column for some time, a law designed to work well in the print world is not helping very much at all with the digital-era move to open access to research, which has been, to take a dramatic and pressing example, a key part of the open science fight against the pandemic. Copyright needs to encourage publishers to open access to research, just as it now makes it profitable to restrict access, given the consensus among publishers and scholars that open access is a better way “to Promote the progress of Science,” as the U.S. Constitution describes copyright’s intent.

What I find fascinating is how the questions that the Canadian and American governments are raising, in addressing very different copyright issues, align very well with the case I have been assembling (here) for reforming copyright to serve open access to research. The questions that they pose around the current state of the law are the same that I am raising having to do with the extent to which copyright (a) serves as a barrier to what it is intended to facilitate; (b) fails to recognize important distinctions need to better serve AI productions, the press, or, in my case, research publications; and (c) has yet, in a point exclusive to the American Notice, to ensure remuneration at a fair price for aggregating news or, in my case, publishing research with immediate open access, both of which are arguably vital to informing democratic life and promoting the progress of science. You can appreciate the eagerness with which I await the outcomes of these two important consultations and inquiries.

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