Property enforcement or retrogressive measure? Copyright reform in Canada and the human right of access to knowledge

Abstract

Is it true that, before the recent cases that are said to have redefined its path, Canadian copyright law was missing a purpose? This article presents an alternative view, based on domestic and international human rights law. It argues that the recent “upbringing” of users’ rights in Canada in reality reflects the implicit entrenchment of the so-called human right of access to knowledge in the domestic legal system. The article starts with a critical analysis of Canadian copyright case law, presenting some unsuspected problems in what the scholarly literature calls “the trilogy” – the group of cases that is believed to have unveiled the principle of balance in Canadian copyright law. It calls for an integral approach to users’ rights, which does not ignore the complex fabric of decisions that provides for the internalization of international human rights in Canadian law. Arguing that the Supreme Court of Canada should explicitly acknowledge this relation, the article sketches a framework for understanding how a human right of access to knowledge, if present in the international human rights system, would also be found within Canadian law itself. Finally, the article denies the supposed human rights nature of copyright, and, conversely, argues that several different instruments within the United Nations system provide solid grounds for grasping the existence of a human right of access to knowledge. Understanding, that users’ rights are human rights has important implications for copyright policy. The most important of all is the presumption against retrogressive measures, which would oblige those who push the ongoing process of copyright reform in this country to prove that any additional layer of protection would be legitimate within a human rights context.