Putting the Community in Communication: Dissolving the Conflict between Freedom of Expression and Copyright

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University of Toronto Law Journal. Volume 56, Number 1 (2006), p. 75-114.


community; Copyright; free speech; Freedom of Expression; individual rights


This paper is concerned with the relationship between freedom of expression and copyright law — and, more specifically, with what this relationship reveals about the nature and purpose of the copyright interest. I argue that the source of the apparent conflict between copyright and free expression is the prevailing characterization of both as individual rights vested in the liberal subject. The key to dissolving the conflict lies in the recognition of the social values that these rights affirm: the value that we attach to communication, to interaction between members of society and to participation in a social dialogue. If copyright is to be justified as necessary limitation upon expression in the name of maximizing creativity, then it must embrace the values of freedom of expression, for these values are its own. Through an analysis of the Canadian case of Cie Générale des Etablissements Michélin-Michélin & Cie v. C.A.W.-Canada, I show how the private property analogy undermines the expressive function of copyright's subject matter. It therefore neglects the speech implications of the copyright system, permits intellectual property to trump the principles of free expression, and ultimately defeats copyright’s public policy goals. The vision of copyright as a private, proprietary entitlement capable of trumping free expression thus threatens the internal coherence and legitimacy of the copyright system.

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