The
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.
Citation: (1997) 55(2) U.T. Fac. L. Rev. 175.
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© 1997. University of Toronto Faculty of Law Review.
All rights reserved.
