Constitutionalizing Copyright: Freedom of Expression and the Limits of Copyright in Canada

DAVID FEWER

ABSTRACT

The Copyright Act grants authors of original literary, dramatic, artistic, and musical works a series of exclusive rights in those works. Fundamental to copyright law is the ideal/expression dichotomy: copyright denies protection to ideas alone, instead extending protection only to the expression of an idea that is fixed in a tangible medium. Expression, however, enjoys explicit constitutional protection under the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms. One might therefore presume that litigation under theCopyright Act would attract considerable constitutional scrutiny. This has not been the case. Instead, freedom of expression has been all but ignored in copyright actions, and those few courts that have entertained Charter defences have casually brushed them aside with little or no reasoned analysis. This lack of interaction between copyright and freedom of expression is inconsistent with more recent Supreme Court of Canada articulations of the purposes and scope of freedom of expression. In this article, the author applies the Supreme Court's recent freedom of expression jurisprudence to the structure of copyright law, identifies aspects of copyright that potentially encroach on Charter rights, and suggests means by which courts and legislators may attempt to reconcile copyright with the Charter.

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Citation: (1997) 55(2) U.T. Fac. L. Rev. 175.
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