The Copyright Modernization Act (Bill C-11) has generated much discussion on its merits and deficiencies. However, one issue that commentators have not discussed in depth is the relationship between laws and social norms. Specifically, whether any amendments to copyright law in Canada will have an effect on user behaviour given the social acceptability of copyright infringing activities like music file sharing. Accordingly, this commentary looks at the social norms around copyright and discusses the potential effectiveness of Bill C-11 in combating copyright infringement if it conflicts with social norms. This discussion also suggests how a university community can play an important role in lining up social norms with laws in a symbiotic fashion to encourage adherence to copyright principles.
The Power of Norms
The research on social norms suggests that people generally obey the law because they think it is the right thing to do. In contrast, laws that starkly contradict social norms may encourage non-compliance and create criminogenic effects.[1] If the sociological and psychological research is correct, then the ability of Bill C-11 to single-handedly combat online copyright infringement will fall short. For instance, any attempt to curtail copyright infringement through the legal reinforcement of technological protection measures may have little effect if individuals do not believe in the efficacy of these technologies and the laws to begin with.
When the law is in line with social norms however, the law is typically abided by and enforcement is relatively easy given that the law is socially accepted. If social norms are not aligned with laws, disobedience is more probable, and given the scale of online music file sharing, enforcement will also be difficult without great costs.[2] To take an example, we believe that murder is intrinsically wrong and society does not have any problems complying with laws against murder. When it does happen, we inherently believe that the law should punish those who commit murder and we believe that murderers should be socially condemned. Even if there was no law against murder, it is unlikely that individuals would begin to kill one another – the social sanctions and innate understanding about appropriate conduct regarding taking another’s life would guide individuals.
Universities: The Alignment of Norms with Law
These social norms and sanctions are simply not as strong with online music file sharing and copyright law. Nonetheless, smaller communities, rather than the government at large, have the ability to foster respect for intellectual property without strict recourse to the law. Take the example of university rules around plagiarism and academic integrity, which, as opposed to copyright laws, are often most salient for students. Students comply with academic rules and properly attribute their research not because of any particular legal justification, but also because of the social stigma in the academic community around those who plagiarize. The sanctions for plagiarism that a student would receive from university administration punish much in the same way that the law does. In addition, there is the social consequence of risking one’s career and having their work discredited, which is enough to deter most from plagiarizing. Hence, it is this interaction between regulatory consequences and social sanctions that likely affects behaviour.
As well, in one survey,[3] college students thought that file sharing was common practice and didn’t have any problems with it. However, they said that it would be less socially acceptable if those who did so were subject to shaming penalties, such as having their names published, and had their university Internet privileges taken away.[4] As a consequence, the survey results suggest that universities have a role to take in aligning social norms with the law by applying social sanctions to those who use the school’s Internet to engage in illicit online music file sharing. These two examples illustrate that, at least within the university community, there are many opportunities for strong social sanctions to effectively hinder infringing music downloads without strict recourse to formal laws or enforcement.
What is Next for Bill C-11?
This commentary is not asserting any justifications for the social norms of society, nor is it arguing that Bill C-11 will be an unsuccessful piece of legislation in addressing the challenges of the Internet and technology. However, what is necessary to understand is that Bill C-11 alone will likely not be enough to limit copyright infringement in the digital era. Social norms are a powerful determinative factor in dictating human behaviour. As a result, the challenges that technology and the Internet present must not only be addressed through the law but through an understanding of our social norms and interactions.
Alexander Ly is a JD candidate at Osgoode Hall Law School and is currently enrolled in Osgoode’s Law & Social Change: Law & Music course. As part of the course requirements, students are asked to write a blog on a topic of their choice.
[1] Mark F. Schultz, “Copynorms: Copyright and Social Norms” (27 September 2006), online: SSRN <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=933656> at 38.
[2] Ben Depoorter, Francesco Parisi Sven Vanneste, “Problems with the Enforcement of Copyright Law: Is there a Social Norm Backlash?” (2005) 12 International Journal of the Economics of Business 361 at 362.
[3] Yuval Feldman & Janice Nadler, “The Law and Norms of File Sharing” (2006) 43 San Diego L Rev 577 at 608
[4] Ibid at 578.
2 Responses
Mr. Ly is correct in his assessment about the efficacy of laws being influenced heavily by social norms. However, if that is the case, then in a democratic society one would expect to see copyright laws that reflect a majority opinion which, as Mr. Ly states, appears to be that most copyright infringement isn’t wrong. A 2009 study by Angus Reid Forum found that 45% of Canadians feel file-sharing is simply “what people should be able to do on the Internet” with an additional 27% admitting the practice may be wrong, but state that “it’s not a big deal”. The reason why file-sharing is still actionable in Canada is simply because the general public or user’s interest is being confronted with the goal of protecting author’s rights. Copyright law has always operated to strike a balance between the rights of user’s and those of author’s. Depending on the jurisdiction you are in, that balance may shift in favour of one of the parties (for example, in favour of authors in France), however the concerns of both parties are always taken into account in some degree. Since there is such a lax view in the public at large concerning file-sharing, copyright law in Canada might not be designed to be efficient. While Canada will always recognize the right of authors to sue for infringement, the mechanisms for enforcement will likely favour not punishing infringers on a wide basis. That might also explain the reluctance of the courts to impose wide tariffs on ISPs (Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004]), in the same way that Access Copyright charges schools.
Landes & Posner’s “An Economic Analysis of Copyright Law” (1989) 18:2 J Legal Stud 325, argued that the law of copyright is justified only insofar as it promotes economic efficiency. Copyright law must maximize the benefits of creating additional works (encouraging wide dissemination), while minimizing the costs to society of reduced access and the costs of administration.
Mr. Ly’s point is well-taken. When laws are inconsistent with prevailing social norms, it can be expected that non-compliance will occur more frequently than against laws that meet those norms. In other words, the greater the divergence between society’s normative understanding of copyright and the law as it is written, one can expect the costs of administration to correspondingly increase. Although this administrative cost (enforcement of copyright protection) is often passed on to collective rights societies, it is ultimately born by the creators these societies represent.
At least according to Landes & Posner, these costs will create a disincentive (or at least weaken the incentive) to creators to create and disseminate works, and it is thus in conflict with the goal of economic efficiency.
Bill C-11 then, which appears to shift copyright law away from prevailing social norms (by sweeping TPM provisions) may in fact be increasing the costs not just to society, but to the very creators it is attempting to protect.
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