Graham Reynolds is an Assistant Professor in the Faculty of Law at Dalhousie University in Halifax, Nova Scotia, Canada, and an IP Osgoode Research Affiliate.
Recent legislative developments in Canada and the United Kingdom (UK) have raised concerns that expansions in copyright protection may negatively impact freedom of expression rights. In June 2010, the Canadian Government introduced Bill C-32, the latest attempt to reform the Canadian Copyright Act. Bill C-32, modeled in part on the American Digital Millennium Copyright Act, proposed to expand the rights of copyright owners at the expense of freedom of expression concerns. The UK’s Digital Economy Act, which received Royal Assent in April 2010, has also been criticized for expanding copyright protection at the expense of freedom of expression concerns.
My doctoral project, entitled “A ‘Charter Rights First’ Approach to the Intersection of Freedom of Expression and Copyright”, will examine the intersection of freedom of expression and copyright, an understudied area of both Canadian and UK human rights law. Copyright has been said to be both “the engine of free expression” and a restraint on free expression (Harper & Row v. Nation Enterprises, 471 US 539 (1985)). It has been said to be the engine of free expression due to the belief that the economic incentives provided by copyright laws spur individuals to create works that would not otherwise have been created. It has also been said to be a restraint on free expression, as copyright laws prevent individuals from legally engaging in certain speech acts or expressive acts using copyright-protected works.
Given the importance of freedom of expression and the potential for copyright laws to act as a restraint on free expression, one would anticipate that the intersection of freedom of expression and copyright would have received a great deal of judicial and scholarly attention. This has not been the case in Canada or the UK. Few Canadian and UK judicial decisions have addressed this intersection, and only a limited number of works have been written on this topic by Canadian and UK academics. By comparison, the intersection of freedom of expression and copyright has been addressed in many American judicial decisions, and by an impressive number of American academics.
The lack of attention by Canadian and UK courts and commentators to this issue is significant. Over the past century, copyright protection has dramatically expanded in the United States of America (US), in Canada, and in the UK (among other countries). Bill C-32 and the Digital Economy Act are simply the most recent Canadian and UK examples of this trend. As indicated above, expansions in copyright protection may pose threats to freedom of expression, as copyright owners have an increased ability to prevent individuals from expressing themselves using copyright-protected works.
My doctoral project will challenge the reluctance of Canadian and UK courts to use freedom of expression arguments to constrain the expansion of copyright law. Building on the ideas of American copyright and First Amendment scholars, I will argue that the Canadian Copyright Act and the UK’s copyright legislation should be rewritten based on freedom of expression principles.
Graham has received both a Trudeau Foundation Doctoral Scholarship (see his biographical information here) and a Social Sciences and Humanities Research Council Doctoral Fellowship to support his doctoral studies. See also his profile at the Faculty of Law at Dalhousie University. Graham is also a member of Dalhousie Law School’s Law and Technology Institute and the Co-Editor-in-Chief of the Canadian Journal of Law and Technology.