Recognizing the Relevance of Human Rights: The Application of the Presumption of Conformity in the Context of Copyright

This article discusses the application of the presumption of conformity with international law in the context of copyright. Although Canadian courts have applied the presumption of conformity in a number of copyright cases, no Canadian court has explicitly considered, under the presumption of conformity, whether interpretations of provisions of the Copyright Act are consistent with, or reflect the values and principles of, international human rights treaties that Canada has signed and ratified. In this article, I will argue that Canadian courts applying the presumption of conformity in the context of copyright should do so with reference to Canada’s obligations under international human rights treaties as well as its obligations under international intellectual property rights agreements. Using fair dealing as my illustrative example, I will offer some preliminary reflections on the impact of applying the presumption of conformity in the context of copyright with reference to Canada’s human rights obligations.