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Just recently I discovered the latest in a series of Canadian cases involving copyright and freedom of expression. This past summer, in Corporation Sun Media c. Syndicat canadien de la fonction publique, 2007 QCCS 2943, a Québec court held that copyright apparently always trumps expression. For some reason, Canadian courts can't seem to get it: the Charter, not the Copyright Act, is the supreme law of the land.
This latest decision contained an alarming disclaimer of expertise: "Pour le soussigné, qui n’est pas expert en la
matière, il est évident qu’il s’agit d’une contrefaçon de l’œuvre artistique,
propriété de la demanderesse." Well, I'm no expert either, at least not in constitutional law, but I do know that section 52 says, in pretty clear language: "The Constitution
of Canada is the supreme law of Canada, and any law that is
inconsistent with the provisions of the Constitution is, to the
extent of the inconsistency, of no force or effect." So it beats me how anyone can say, "La liberté d’expression prévue par l’article 2
de la Charte et par l’article 3 de la Charte des droits et libertés de
la personne du Québec et
reconnue par la jurisprudence, doit se faire dans le respect des autres lois
tant criminelles que civiles."
It is clear that Canadian courts have some reading to. For starters I'd suggest 2 articles written by colleagues at uOttawa: Jane Bailey's paper on "Deflating the Michelin Man" and David Fewer's article on "Constitutionalizing Copyright." Both are excellent, and obviously much-needed, contributions to the understanding of this issue in Canada.
I could also cite a good number of cases where courts have recognized that freedom of expression can sometimes trump real property rights. But instead, to prove that there's nothing special about the distinction between real and intellectual/intangible property rights, consider the issue of property rights in a personality. It so happens that my first-year property students just studied that topic today.
In Gould Estate v. Stoddart Publishing,[1996] O.J. No. 3288, Justice Lederman seemed to understand the issue. He wrote: "While Canada does not have a constitutional provision akin to the First Amendment which is applicable to the private law, no principled argument has been advanced to suggest that freedom of expression considerations should not animate Canadian courts in identifying the public interest and placing limits on the tort of appropriation of personality. Indeed, freedom of expression would seem to be a compelling and reasonably coherent basis for defining the "obvious" need for limits [on property rights in personality]."
In closing, though some scholars and judges do get this problem, I have to wonder when courts tackling copyright cases will begin to take the Charter seriously.
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