Canadian copyright law and the Charter of Rights and Freedoms : Statutory property rights trump constitutionally guaranteed expression

Abstract

Copyright law has always been surrounded by controversy. It is arguable that the reason why copyright can be a sensitive issue is not simply because it is difficult to create laws for intangible pieces of property, but perhaps because copyright is so widespread it has the ability to affect a substantial number of individuals, whether users or rightholders. The constant state of flux that surrounds copyright law also adds a level of complexity. With technology constantly changing, new issues arise as a result. Freedom of expression adds another realm of complexity. The Canadian Charter of Rights and Freedoms1 acknowledges the importance of free expression in society. Section 2(b) of the Charter provides a constitutionally guaranteed freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. Section 2(b) has already been referred to as the Charter right that has had the biggest influence in Canadian society.2 In Edmonton Journal v Alberta (Attorney General), Cory J stated that it ‘is difficult to imagine a guaranteed right more important to a democratic society’.3