Document Type
Article
English Abstract
This paper examines the intersection of the framing of copyright law in Canada from the perspective of human rights. The study seeks to reconcile the rights of creators with public access to content. Asserting that copyright law is not a human right but a means to uphold the inherent human rights of both creators and the public. This study explores the legal instruments that articulate a copyright framework that aims to achieve the reconciliation of the rights of creators and the public. The discussion begins with the roots of copyright in Canada, tracing back to the Statute of Anne, and moves through its evolution to the present day. The core argument centers on the essential human rights that copyright law impacts, proposing an approach that prioritizes the public interest as well as acknowledging that creators deserve reward for their creativity. Through an analysis divided into six sections, the paper delves into the concept and progression of copyright in Canada, scrutinizes the purpose and scope of exclusive rights and exceptions, reviews copyright within the human rights context, and suggests a reconciliation of the divergent interests of creators, and the public. The conclusion synthesizes these discussions, offering insights into the framing of copyright law grounded in upholding the rights of both the creators and the public.
Citation Information
Ogoroh, Justice and Lomo, Zachary.
"An Examination of the Framing of Canada’s Copyright Exclusive Rights and Exceptions From a Human Rights Perspective."
The Transnational Human Rights Review
10. (2023)
:
DOI: https://doi.org/10.60082/2563-4631.1106
https://digitalcommons.osgoode.yorku.ca/thr/vol10/iss1/4
References
1 Copyright Act, RSC 1985, c C-42, s 3(1).
2 Ibid.
3 Ibid at s 29.
4 Ibid at s 29.1.
5 Ibid s 29.2.
6 The Supreme Court of Canada warned against excessive control by copyright holders and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization. This is reflected in the exceptions to copyright infringement enumerated in ss 29 to 32.2, which seek to protect the public domain in traditional ways such as fair dealing for the purpose of criticism or review and to add new protections to reflect new technology, such as limited computer program reproduction and "ephemeral recordings" in connection with live performances (see Théberge v Galerie d'art du Petit Champlain, 2002 SCC 34 356 [Théberge]).
7 See generally Oren Bracha, "The Adventures of the Statute of Anne in the Land of Unlimited Possibilities: The Life of a Legal Transplant" (2010) 25:3 BTLJ 1427; Lyman Patterson, Copyright in Historical Perspective (Nashville, TN: Vanderbilt University Press, 1968); Salathiel Masterson, "Copyright: History and Development" (1940) 28:5 Cal L Rev 620.
8 The Statute of Anne (UK), 1710.
9 See generally Ronan Deazley, On the Origin of the Right to Copy: Charting the Movement of Copyright Law in the Eighteenth-century Britain, (Oxford: Hart Publishing, 2004); Salathiel Masterson, "Copyright: History and Development" (1940) 28:5 Cal L Rev 620; Lyman Patterson, Copyright in Historical Perspective (Nashville, TN: Vanderbilt University Press, 1968); Tomás Gómez-Arostegui, "The Untold Story of the First Copyright Suit Under the Statute of Anne in 1710" (2010) 25 Berkeley TLJ 1.
10 The Stationers were a group of publishers who organized themselves formally into a guild of publishers to advocate for exclusive right to publish books.
11 Lawrence Lessig, "The Creative Commons" (2004) 65:1 Mont L Rev 1 at 4-8
12 Patterson, supra note 7 at 29.
13 Daniel J Gervais, "A Canadian Copyright Narrative" (2009) 21:3 IPJ 269 at 274.
14 Ibid.
15 Ibid; Masterson, supra note 7 at 625;
16 The 1556 Royal Charter of the Company of Stationers (1557).
17 Patterson, supra note 7 at 29.
18 Bracha, supra note 7 at 1433.
19 Ibid at 1433-34.
20 Ibid at 1434.
21 Masterson, supra note 7 at 628.
22 Ibid.
23 Ibid.
24 Thomas Morris, "The Origins of the Statute of Anne" (1961-1962) 12 Copyright L Symp 222 at 238-239.
25 The Stationers' privileges were renewable, it was not renewed in 1675; in 1685, James II renewed them but only for 7 years but not anymore (see Gervais, supra note 13 at 275; Masterson, supra note 7 at 630).
26 Gervais, supra note 13 at 275.
27 Patterson, supra note 7 at 138-41.
28 The Licensing of the Press Act 1662 was an Act of the Parliament of England with the long title "An Act for preventing the frequent Abuses in printing seditious treasonable and unlicensed Books and Pamphlets and for regulating of Printing and Printing Presses" (see Licensing of The Press Act 1662 (UK)).
29 Bracha, supra note 7 at 1435.
30 Deazley, supra note 9 at 32.
31 Simon Stern, "From Author's Right to Property Right" (2012) 62 UTLJ 29 at 46. https://doi.org/10.1353/tlj.2012.0004
32 Deazley, supra note 30 at 36-37.
33 The Statute of Anne, supra note 8, s 1.
34 Anyone who prints or reprints books without the author's written consent shall forfeit such books to the author who shall damask and make waste paper of them (ibid, s 1).
35 The Statute of Anne, supra note 8, s 4.
36 Ibid, s 5.
37 The royal library, libraries of the universities of Oxford and Cambridge, the libraries of four universities in Scotland, the library of Sion College in London, and the library belonging to the faculty of advocates in Edinburgh.
38 The Statute of Anne, supra note 8, s 5.
39 For detailed discussions of the controversies surrounding the purpose for which the Statute of Anne was enacted see generally Bracha, supra note 7; Patterson, supra note 7; Masterson, supra note 7.
40 Jane C. Ginsburg, "A Tale of Two Copyrights: Literary Property in Revolutionary France and America", (1990) 64 Tul L Rev 991 at 998.
41 Ibid.
42 The Statute of Anne, supra note 8.
43 Statute of Anne, supra note 8.
44 Ibid, s 4.
45 An Act for the Protection of Copyrights, SLC 1832, c 53.
46 Mario Bouchard, "The 2017 Parliamentary Review of Copyright Law: What Could Have Been on the Agenda But Will Not" (2017) 30:1 IPJ at 3.
47 Since its enactment in 1921, the Copyright Act has been amended several times to regulate performing rights societies and to establish the Copyright Appeal Board (see Bouchard, supra note 46); The Copyright Amendment Act (Act 21-22 Geo V of 1931) c 8; An Act to amend The Copyright Amendment Act (Act No 25-26 Geo V of 1931, 1935) c 18; An Act to amend The Copyright Amendment Act (Act No I Edw VIII of 1931, 1936) c 28; An Act to amend the Copyright Amendment Act 1931, and The Copyright Act 1938 (Act No 2 Geo VI) c 27.
48 David Vaver, Intellectual Property Law: Copyright, Patents and Trade-Marks, 2d ed. (Toronto: Irwin Law, 2011) at 55.
49 The studies included the 1954-1960 Royal Commission on Patents, Copyright, and Industrial Design (the "Ilsley Commission"); a 1977 working paper by the Canadian Department of Consumer and Corporate Affairs, entitled Copyright in Canada: Proposals for Revision of the Law (the "Keyes-Brunet Report"); a 1984 federal government white paper on copyright, entitled From Gutenberg to Telidon: A White Paper on Copyright; and a report from the 1985 House of Commons' Standing Committee on Communications and Culture, entitled A Charter of Rights for Creators - Report of the Subcommittee on the Revision of Copyright (see Jay Makarenko, "Copyright Law in Canada: An Introduction to the Canadian Copyright Act" (13 March 2009), online: https://repolitics.com/features/copyright-law-in-canada/#history).
50 Phase I led to important changes to the original Act, including: statutory protection for computer programs, clarification and extension of moral rights, elimination of the compulsory licence for the reproduction of musical works and the substitution of a right of negotiation, the introduction of a new procedure to licence works where the owner could not be located, new rights for visual artists to exhibit their works in public, increased criminal sanctions, and the enactment of rules under which collective organizations could form and operate under the supervision of a revamped Copyright Board (ibid).
51 Phase II included: new remuneration rights to producers and performers of sound recordings when their sound recordings are broadcast or publicly performed by radio stations and in public places like bars and restaurants, compensation system for private copying, in the form of a levy on blank audio recording media, benefitting eligible composers, lyricists, performers, and producers of sound recordings for the making of recordings, provisions granting exclusive book distributors legal protection in the Canadian market, new exceptions to non-profit educational institutions, libraries, archives, museums, broadcasters, and persons with perceptual disabilities allowing them to reproduce or use copyright material in specific circumstances without paying royalties or obtaining authorization from rights holders, statutory damages and wide injunctions to enhance the enforcement of copyright (ibid).
52 Bouchard, supra note 46 at 5, citing Industry Canada, Supporting Culture and Innovation: Report on the Provisions and Operations of the Copyright Act (Ottawa: Industry Canada, 2002).
53 Ibid.
54 Ibid.
55 The WCT entered into force on March 6, 2002 (see World Intellectual Property Organization, "WIPO Copyright Treaty" (20 December 1996), online: http://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=295157).
56 World Intellectual Property Organization, "WIPO Performances and Phonograms Treaty" (20 December 1996), online: http://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=295477.
57 Copyright Act, supra note 1.
58 At least the long title (An Act for the Encouragement of Learning by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned) of the Statute of Anne hints on the purpose of the law.
59 Statute of Anne, supra note 8, s 1 (the grant of copyright as well as the right to assign this copyright), s 4 (duty to fix fair prices to check exploitation of users by copyright owners), s 5 (a requirement for copyright owners to deposit nine copies of their works in public libraries for user to freely access them).
60 Copyright Act, supra note 1, s 3(1)(a)- (j) are copyright exclusive rights; s 29, 29.1, 29.2 are exceptions to copyright.
61 An Act for the Protection of Copyrights, supra note 45.
62 US Const art I, §8, cl 8.
63 Ginsburg, supra note 40 at 999.
64 Teresa Scassa, "Interest in the Balance" in Michael Geist, ed, In the Public Interest, The Future of Canadian Copyright Law (Toronto: Irwin Law, 2005) at 41.
65 Gervais, supra note 13 at 285.
66 Copyright is in effect a right to prevent the appropriation of the expressed results of the labours of an author by other persons. That an author should have this right, at least for a limited period, is generally- on the ground of justice, expediency, or both. The right is regarded by some as a "natural right" on the ground that nothing is more certainly a man's property than the fruit of his brain. It is regarded by others as not a natural right but a right which the state should confer in order to promote and encourage the labours of authors…We find it unnecessary to go on record with a conclusion of faith in either doctrine to the exclusion of the other (see Gervais, supra note 13 at 285, citing Canada, Royal Commission on Patents, Copyrights, Trade Marks and Industrial Designs, Report on Copyright (Ottawa: Ilsley Commission, 1957) at 9).
67 Information Highway Advisory Council, Copyright and the Information Highway: Final Report of the Copyright Sub Committee (Ottawa: Information Highway Advisory Council, 1995) at 30; Gervais, supra note 13 at 286.
68 Laura J Murray, "Copyright Talk: Patterns and Pitfalls in Canadian Policy Discourses" in Michael Geist (ed), In the Public Interest, The Future of Canadian Copyright Law (Toronto: Irwin Law, 2005) at 25. Helen Chalifour Scherrer, the Heritage Minister as of 2004 said: "We are going to make sure that downloading stays illegal. We will make it a priority, so it is done as quickly as possible …she assured them that now I really know what the music industry is all about…I am going back to Ottawa with the will to do something." This comment is suggestive of a one-sided approach to copyright and is detrimental to public interest and the purpose of copyright law.
69 Blayne Haggart, Copyfight: The Global Politics of Digital Copyright Reform (Toronto: University of Toronto Press, 2014) at 15. https://doi.org/10.3138/9781442666221
70 Myra Tawfik, "History in the Balance: Copyright and Access to Knowledge" in Michael Geist (ed), From "Radical Extremism" to "Balanced Copyright": Canadian Copyright and the Digital Agenda (Toronto: Irwin Law, 2010) at 70.
71 Daniel J. Gervais, "The Purpose of Copyright Law in Canada" (2005) 2 U Ottawa LTJ 315 at 317.
72 Copyright Modernization Act, SC 2012, c 20, Preamble.
73 Ibid.
74 Ibid.
75 US Const, supra note 62.
76 Théberge, supra note 6 at paras 30-31. 77 Ibid at paras 336-37.
78 Ibid at para 337.
79 Copyright Act, supra note 1, s 3(1).
80 Théberge, supra note 6 at 344-45.
81 Ibid at paras 355-56.
82 Copyright Act, supra note 1.
83 Ibid.
84 Ibid at s 27.
85 Ibid at ss 29, 29.1, 29.2.
86 See e.g. Nintendo of America Inc. v Jeramie Douglas King & Go Cyber Shopping, 2017 FC 246. 87 Copyright Modernization Act, supra note 72.
82 Copyright Act, supra note 1.
83 Ibid.
84 Ibid at s 27.
85 Ibid at ss 29, 29.1, 29.2.
86 See e.g. Nintendo of America Inc. v Jeramie Douglas King & Go Cyber Shopping, 2017 FC 246.
87 Copyright Modernization Act, supra note 72.
88 Copyright Act 1985, supra note 1.
89 Ibid at s 29.1.
90 Ibid at s 29.2.
91 Théberge, supra note 6.
92 On the issue of creators' entitlement to receive a fair reward, Canada's apex court cites Millar v Taylor (1769), 98 ER 201, per Willes J., at p.218. "It is wise in any state, to encourage letters, and the painful researches of men. The easiest and most equal way of doing it, is, by securing to them the property of their own works…He who engages in a laborious work, (such for instance, as Johnson's Dictionary), which may employ his whole life, will do it with more spirit, if, besides his own glory, he thinks it may be a provision for family."
93 Gervais, supra note 26 at 275; Masterson, supra note 18 at 630.
94 Statute of Anne, supra note 8.
95 Ibid.
96 Ibid.
97 Ibid; Copyright Act, supra note 85.
98 Ginsburg, supra note 40 at 998.
99 See generally Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, MA & London, UK: Belknap Press of Harvard University Press, 2010) [Moyn, The Last Utopia].
100 Ibid at 11-15.
101 Ibid.
102 Ibid.
103 Samuel Moyn, Christian Human Rights (Philadelphia: University of Pennsylvania Press, 2015) [Moyn, Christian Human Rights].
104 Moyn, The Last Utopia, supra note 99 at 50.
105 Moyn, Christian Human Rights, supra note 103 at 2.
106 Ibid; see also Papal Encyclicals Online, "The Internal Order of States and People" (last modified 20 February, 2020), online: https://www.papalencyclicals.net/pius12/p12ch42.htm .
107 Ibid.
108 See e.g. Government of Canada, "Canada and the United Nations Human Rights System: Human Rights Treaties" (12 October 2023), online: https://www.canada.ca/en/canadian-heritage/services/canada-united-nations-system/treaties.html .
109 Ibid.
110 Paul L C Torremans, "Is Copyright a Human Rights?" (2007), 2007:1 Mich St L 271. https://doi.org/10.4337/9781848440210
111 Ibid at 275-276, 279.
112 Francois Dessemontet, "Copyright and Human Rights", online: https://www.unil.ch/cedidac/files/live/sites/cedidac/files/Articles/Copyright%20%26%20Human%20Rights.pdf .
113 See e.g. Manoj K Sinha & Vandana Mahalwar (eds), 'Copyright and Human Rights: The Quest for a Fair Balance' (2017) in Manoj K Sinha & Vandana Mahalwar, Copyright Law in the Digital World (Singapore: Springer, 2017).
114 Torremans, supra note 110, at 272.
115 See Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331 art 31(1) (entered into force on 27 January 1980), providing that the plain meaning be given terms in a treaty. Although the UDHR is not a treaty, we surmise because it is an international declaration, rules of treaty interpretation may be applied to analyzing the meaning of its terms.
116 Oxford Advanced Learner's Dictionary, "Property", online: https://www.oxfordlearnersdictionaries.com/us/definition/english/property?q=Property .
117 Universal Declaration of Human Rights, UNGA, 3rd Sess, UN Doc A/810 (1948) GA Res 217A (III).
118 International Covenant on Economic, Social and Cultural Rights, UNGA, UN Doc A/6316 (1966) GA Res 2200A (XXI), art 15 (1)(a).
119 Ibid, art 15 (1)(b).
120 Ibid, art 15 (1)(c).
121 International Publishers Association (IPA), "Copyright and Human Rights: An IPA Special Report" (8 July 2015), online (pdf): https://www.internationalpublishers.org/images/Copyright.pdf .
122 See e.g. Farida Shaheed, Report of the Special Rapporteur in the Field of Cultural Rights: Copyright and the right to Science and Culture, UNGA, 28th Sess, UN Doc A/HRC/28/57 (2014).
123 See e.g. Farida Shaheed, Report of the Special Rapporteur in the Field of Cultural Rights: The Right to Enjoy the Benefits of Scientific Progress and Its Applications, UNGA, 20th Sess, UN Doc A/HRC/20/26 (2012).
124 See e.g. Yvonne Donders, "The Right to Enjoy the Benefits of Scientific Progress and its Applications: In Search of State Obligations in Relation to Health" (2011) 14:4 Medicine, Health Care and Philosophy 371 https://doi.org/10.1007/s11019-011-9327-y ; Amrei Muller, "Remarks on the Venice Statement on the Right to Enjoy the Benefits of Scientific Progress and its Applications (Article 15(1)(b) ICESCR)" (2010) 10:4 Human Rights L Rev 765 https://doi.org/10.1093/hrlr/ngq033 .
125 On these aspects, see Report of the Special Rapporteur in the Field of Cultural Rights: The Right to Enjoy the Benefits of Scientific Progress and Its Applications, supra note 123.
126 For detailed discussion of the elements of the content and scope of the right to take part in cultural life, see e.g. General Comment No. 21: Right of everyone to take part in cultural life, CESCR, 43rd Sess, UN Doc E/C12/GC/21 (2009).
127 General Comment No. 17 (2005) The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author, CESCR, 35th Sess, UN Doc E/C12/GC1712 (2006).
128 Jane C Ginsburg, "How Copyright Got a Bad Name for Itself" (2002) 26:1 Colum J L & Arts 61https://doi.org/10.2139/ssrn.342182 .
129 Torremans, supra note 110; Dessemontet, supra note 112.
130 Lawrence Lessig, Free Culture, How big Media uses Technology and the Law to lock down Culture and Control Creativity (New York: Penguin Press, 2004) at XVI.
131 Théberge, supra note 6.
132 Patterson, supra note 7.
133 Such critics were Daniel Defoe, John Milton and John Locke.
134 Millar v Taylor, [1769] 98 ER 201 https://doi.org/10.1103/PhysRev.98.201.
135 Morris, supra note 24 at 227, citing Donaldson v Becket [1775] 98 ER 257.
136 Millar had purchased rights in The Seasons from the original author - James Thompson.
137 Stern, supra note 31 at 72.
138 Ronan Deazley, "Commentary on Millar v. Taylor (1769)" (2008) in Lionel Bentley & Martin Krestschmer, "Primary Sources on Copyright (1450 - 1900)" (2008), online: http://www.copyrighthistory.org/cam/commentary/uk_1769/uk_1769_com_972007181852.html at 5.
139 See Morris, supra note 24.
140 Wikipedia, Donaldson v. Becket, at online: https://en.wikipedia.org/wiki/Donaldson_v_Beckett . Accessed November 27, 2023, at 2.
141 Théberge, supra note 6.
142 Ibid.
143 Ibid.