The proposed law will not affect the marketing community, given that there are no criminals amongst you. Nonetheless, copyright law is one of the single most important laws designed to protect the fruits of this community's labour, and an amber light should go off in your heads whenever Parliament wants to contract those rights.
As our legislators debate the topic in the months to come, here is a primer on the issues involved to help you arrive at you own conclusion about the correctness of the proposed Canadian Son of Sam law.
First, who is the Son of Sam? He is convicted serial killer David Berkowitz, who in the mid-1970's terrorized the City of New York, leaving behind a cryptic message after each of his murders that was signed "Son of Sam." When eventually caught, he stood to make considerable money from the sale of his book rights.
New York passed what became known as a Son of Sam law to prevent Berkowitz and other criminals from selling their stories by having the profits from their books given to the victims of those crimes. Senator Gold of the New York legislature was the author of the original Son of Sam law, and he described the intent of the law this way: "it is abhorrent to one's sense of justice and decency that an individual...can expect to receive large sums of money for his story once captured while five people are dead...as a result of his conduct."
As an aside, the law never touched Berkowitz since he was declared incompetent to stand trial and the NY statute at that time only applied to convicted criminals.
As with any controversial topic, there are competing viewpoints, each having merit. Those who favour Son of Sam laws have their strongest argument in the view that a criminal should not profit from their crime. It is a very compelling argument.
Those who argue against Son of Sam laws have as their strongest argument the restrictions that the law places on freedom of expression. In a democracy, they argue, governments cannot act as censors no matter how loathsome the idea that is being expressed.
Proponents of the Son of Sam law recognize the free speech argument as being valid, and point out that the criminal is still entitled to write their book, they will simply not profit from it.
Free speech advocates reply that stripping a criminal of their book royalties places a chilling effect on expression, since the criminal might not otherwise write the book and the book may contribute to society's knowledge-base. As well, they argue that free speech principles are so important to the underpinnings of a democracy, they must prevail in a contest between equally valid competing objectives.
Since its original adoption in New York, the NY Son of Sam law has had an interesting history. It has been used against Mark David Chapman, the assassin of John Lennon, and Jean Harris, the convicted killer of Herman Tarnower, the Scarsdale Diet doctor. It was later declared unconstitutional by the US Supreme Court for its violations of free speech.
The US Supreme Court ruling is obviously worth examining. The case before the court involved Henry Hill, an admitted figure in organized crime, whose book "Wiseguy," and film "Goodfellas," were both commercial successes. The state of New York claimed the profits under its Son of Sam law, and the book's publisher, Simon & Shuster, went to court to question the constitutionality of the law.
In declaring the statute unconstitutional, Justice O'Connor stated that
"free expression is...intended to remove governmental restraints from the arena of public discussion," that the statute offended that right because it seized only the profits of a book and not any other assets of the criminal and therefore wrongly singled out speech for disapproval.Justice O'Connor noted that had the Son of Sam law been in effect in earlier times, it could have attached itself to works such as Thoreau's "Civil Disobedience" in which the author described his refusal to pay taxes and recalls his experience in jail, or Jesse Jackson, who was arrested in 1963 for trespass and resisting arrest after attempting to be served at a lunch counter in North Carolina.
Lastly, let's look at Justice Kennedy's concurring opinion in the Simon & Shuster case. It is particularly worth quoting from because of his reputation for being a more judicially conservative justice, yet he embraces a very liberal position on the point:
"the New York statute amounts to raw censorship...(it is the type of) censorship forbidden by (the Bill of Rights) and well-settled principles protecting speech...That ought to end the matter."