Moving Past Michelin: Towards Judicial Reconsideration of the Intersection of Copyright and the Charter Right to Freedom of Expression

On a regular basis over the past two decades, Canadian courts considering the intersection of the Charter right to freedom of expression and copyright have cited to Michelin v. CAW-Canada as authority. In this paper, I argue that it is no longer acceptable for them to do so. As I will establish, the approaches to the intersection of freedom of expression and copyright employed in Michelin rely upon and have been shaped by conceptions of copyright and freedom of expression that although once endorsed by the Supreme Court of Canada, are no longer valid, namely the author-centric view of copyright as well as an approach to freedom of expression under which it is accepted that property rights are insulated from Charter scrutiny. As such, the Michelin approaches to the intersection of the Charter right to freedom of expression and copyright are no longer good law, and should be explicitly rejected.