
If court decisions and legislative activity are the bread and butter of legal academics, 2012 offered a gargantuan banquet to observers of the Canadian copyright scene: a series of amendments to the Copyright Act unlike anything that had been seen for 15 years and no less than six Supreme Court decisions. Indeed, that 15-year period provides an interesting time frame for some observations on the relationship between the legislator and the courts when it comes to copyright law. Which of the two institutions is exerting the greater influence on its development? Recent Canadian history may give a glimpse of the future. When the decision to update its increasingly antiquated Copyright Act was made in the early 1980s, the task appeared so daunting to the Canadian government that it was split in phases. Between Phase I in 1988 and Phase II in 1997, important changes were dictated by three trade agreements (Canada-United States, NAFTA, WTO), while five other laws took care of less weighty matters. Over the next 15 years till the Copyright Modernisation Act, 11 different statutes made punctual or minor modifications. It became increasingly easy to take stock of the fact that acting upon the national agenda in a cohesive manner was even more difficult than it was thought in the 1980s. By contrast, the Supreme Court of Canada rendered respectively two and 12 decisions over the same periods of time. Have Canadian copyright owners become more litigious? Have they become weary of lobbying politicians and bureaucrats? Are the courts where the action really is? Of the two cases decided between 1988 and 1997, one need only remember that the outcome of one decision resulted in the issue of ephemeral recordings being taken up in the Phase II revision. This specific action-reaction sequence can hardly be considered a harbinger of things to come, if one compares it with two decisions
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