Abstract
In contemporary copyright law, there is an ongoing debate around the nature and scope of the rights users should have to copyright works, exacerbated by ongoing technological developments. Within that debate, this article queries the value of looking at the remedies users may have against copyright holders restricting their legitimate uses of works, as a means to further elucidate the nature and scope of user rights. While there is some value in looking at remedies to situate copyright user rights, an access to justice perspective to rights and remedies suggests that such approach may be too limiting with respect to the position of potential claimants in a legal system. On that basis, this paper identifies structural deficiencies of copyright user rights and proposes an analytical framework towards achieving greater “justice for users” both in the realm of public law and private law.
Highlights
The insights of the third and fourth wave of access to justice respectively inform us about the greater gains to be made by focusing on the substantive law and on issues of equality, and on addressing particular issues preventively rather than through the traditional channels of adversarial procedures
There should in my view be a different level of expectations towards authors and copyright holders when users own the copy of the work versus situations when potential users come across a work in the public sphere
What remedies copyright users have is a valid question to better understand the nature of their rights in a rights-remedies paradigm
Summary
What is more controversial to some or at best uncertain to others, is the scope of those user rights including what is traditionally referred to as exceptions to copyright infringement This is due in great part to copyright law having been predominantly centered on the exclusive rights of authors and copyright holders. The Supreme Court of Canada’s qualification of exceptions to copyright infringement as user rights contrasts with courts in other jurisdictions, including the US and France, that have typically referred to exceptions to copyright infringement as defenses that cannot form the basis of a legal claim.. If users have the power in law to require copyright holders to facilitate the performance of acts that are allowed through exceptions to copyright infringement, the said exceptions would be more properly characterized as right (in Hohfeldian terms).
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