Technological Neutrality: (Pre)Serving the Purposes of Copyright Law (original) (raw)
In the realm of law, neutrality is widely hailed as a fundamental principle of fairness, justice and equity; it is also, however, widely criticized as a myth that too often obscures the inevitable reality of perspective, interest or agenda. It should come as little surprise, then, that the principle of technological neutrality, recently employed by the Supreme Court of Canada when applying copyright law to online activities, seems similarly fundamental in the copyright realm-but also largely mythical and potentially obfuscatory. In what is now dubbed the Supreme Court's "copyright pentalogy"-five copyright judgments released concurrently by the Court in July 2012 1-the unprecedented importance accorded by the Court to the principle of technological neutrality is clear; what remains unclear is precisely what "technological neutrality" means, why it matters, and whether or how it can (or should) ever be attained. This chapter aims to critically assess the significance of the principle and its potential to guide the future development of copyright law and policy in Canada. In Part 2, I set out the various shades of meaning that can be attached to technological neutrality, first as a 9 The majority was criticized for its concern with the form rather than the substance of the database on the grounds that this was "inconsistent with the media neutral approach mandated by s 3 of the Copyright Act. " 27 The principle of media neutrality was, however, explicitly acknowledged by all members of the Court. The majority judgment recognized that "[m]edia neutrality is reflected in s 3(1) of the Copyright Act which describes a right to produce or reproduce a work
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