In overturning Roe v. Wade on June 24, 2022 in Dobbs v. Jackson Women’s Health Organization, the U.S. the Supreme Court signaled a radical break with the history of the Court, executed in the name of an historicist “originalism.” David Cole, the National Legal Director of the American Civil Liberties Union, noted in the New York Review of Books (August 18, 2022) that “never has the Court eliminated a constitutional right so central to the equality and autonomy of half the nation.” But then he also observes that “never has so much changed in a single year” for the court, given decisions on gun rights, religion in school, and environmental regulation that run contrary to earlier decisions and legislation. What Cole demonstrates is that both legal history and the Constitution are badly served by the Court’s conservative majority.
I raise the abortion decision not just for how it has shocked all who support women’s rights, but for how it has caused me to rethink Canadian jurisprudence, as it bears on my Slaw legal beat on copyright in research and scholarship. The fact is that I have long relied on the U.S. Constitution’s clear articulation of intellectual property law’s purpose, namely, “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” I now wonder if the Constitution provides the U.S. with any more of a solid starting point than Canada or other countries have to offer, when it comes to amending copyright to better serve science, which I’ve been advocating for some time.
In the case of Canada, I’ve been concerned that the Constitution Acts, 1867 to 1982, as well as in the Bill of Rights and Copyright Act, make no reference to copyright’s purpose. The Copyright Act, for example, refers to how those engaged in research are able, under the “fair dealing” exception, to copy an article. This leftover accommodation of the last century’s photocopying practices, however, has little bearing on applying data and text mining strategies to commercially operated research databases. But then, there’s no recourse or appeal that can be made to how the law needs to promote the progress of science or some serve other worthy purpose.
The Canadian courts, on the other hand, prove more helpful on this point. The recent Canadian Supreme Court case York University v. Canadian Copyright Licensing Agency (Access Copyright) 2021 is a relevant instance. In her ruling on this case, Justice Abella cites an earlier decision’s reflections, for example, on how copyright is evolving: “This Court’s modern fair dealing doctrine reflects its more general,” she writes before citing, “‘move away from an earlier, author-centric view which focused on the exclusive right of authors and copyright owners to control how their works were used in the marketplace’” .
Beyond referring to earlier rulings, Justice Abella also finds the measure of Canada’s principles in the work of the country’s legal scholars, such as Myra J. Tawfik at the University of Windsor, whom the Justice cites for her placement of the Canadian courts “‘at the vanguard in interpreting copyright law as a balance between copyright rights and user rights’” .
What Justice Abella draws from all of this is that, “copyright law has public interest goals” . As a result, she declares that “increasing public access to and dissemination of artistic and intellectual works, which enrich society and often provide users with the tools and inspiration to generate works of their own, is a primary goal of copyright” .
If the Supreme Court of Canada holds that “increasing public access… is a primary goal of copyright,” then I might well wonder, what more do I want from the law, as an advocate of such public or open access to research? The reasons that Justice Abella provides for increasing public access in 2021 – that it “often provide users with tools and inspiration” – is not all that removed from the constitutional goal set for copyright in 1789, namely, “to promote the progress of science.”
By very different historical paths, the two countries appear to be in agreement on the purpose and value of copyright, with a somewhat tighter focus on science in the case of the United States. By the same token, they offer a common starting point for assessing whether copyright is doing all that it can to enable inspiration and progress for digital-era science and scholarship. While I judge the law in both jurisdictions to have fallen behind in serving their differently stated goals, when it comes to increasing public access to research my confidence in the U.S. Constitution’s intellectual property clause readily underwriting the call for copyright reform has been shaken. The Dobbs decision is a grim reminder that a common sense of the past is not to be taken for granted when it comes to protecting people’s rights or building a case for legal reform.