Featured here is a summary of Pascale Chapdelaine’s paper, which was selected through blind peer review for the competitive 6th Annual Junior Scholars in Intellectual Property Workshop (Michigan State University, October 2013) where established American IP scholars, commented on Pascale’s and the other selected participants’ papers.
This paper will appear in an upcoming issue of the Intellectual Property Journal. The paper builds on Pascale’s Ph.D. thesis work that Pascale defended in June 2013 at Osgoode Hall, under the supervision of Professor Giuseppina D’Agostino. Professors David Vaver (Osgoode Hall) and Geraint Howells (Manchester School of Law, UK) were on Pascale’s committee. Earlier versions of this paper were presented at the Oxford Intellectual Property Research Centre (May 2013) and at the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP) Conference (June 2013, Oxford UK).
In “The Ambiguous Nature of Copyright Users’ Rights”, Pascale investigates the nature of exceptions to copyright infringement, or users’ rights, as they are laid out in Canada’s Copyright Act and through copyright jurisprudence, as well as through their interaction with contracts and technological protection measures [TPMs]. What is the significance of the Supreme Court of Canada characterization of exceptions as users’ rights? Are exceptions to copyright infringement rights or privileges? Are they mandatory?
While copyright users’ rights and interests have triggered significant interest and debate, including amongst scholars, legal practitioners, creators, institutional users, content integrators and business intermediaries, relatively less attention has been given to defining their precise nature, and on the consequences of the main characteristics of exceptions to copyright infringement on copyright law and policy. Pascale investigates the nature of copyright users’ rights under Canadian copyright law and in a global context, looking at other jurisdictions and international conventions.
Pascale begins her analysis by looking at four exceptions to copyright infringement that were introduced to the Copyright Act in 2012 (i.e., the non-commercial user-generated content, the reproduction for private purposes, the later listening or viewing and the backup copies exceptions to copyright infringement) with a particular focus on their relevance for consumers and their relation to pre-existing users’ rights. Pascale then examines the interplay between the users’ rights set out in the Copyright Act and how they can be altered or overridden by non-negotiated standard end-user agreements and TPMs. To this end, Pascale refers to a sample of non-negotiated standard terms of use for the online distribution of books, musical recordings, and films. Pascale investigates the nature of exceptions to copyright infringement, including through Wesley N. Hohfeld’s theory of jural correlatives. Pascale analyses the policy considerations behind these questions and concludes by reflecting on the potentially damaging effects of the uncertain nature of users’ rights to copyright law and policy.
Dr. Pascale Chapdelaine is Visiting Scholar and Adjunct Professor at the University of Toronto, Faculty of Law for the academic year 2013-2014, and is a member of IP Osgoode.