Reconsidering Copyright’s Constitutionality

In 1996, in Compagnie Générale des Établissements Michelin – Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (Michelin), Teitelbaum J. of the Federal Court (Trial Division) held both that specific provisions of the Copyright Act did not infringe the right to freedom of expression as protected under the Canadian Charter of Rights and Freedoms (Charter) and that, even if they did, these provisions could be justified under s. 1 of the Charter. Since Michelin, these conclusions have been treated by Canadian courts as settled. The purpose of this paper is to challenge these conclusions by subjecting certain core provisions of the Copyright Act to Charter scrutiny. I will do so in reliance on one case study, namely copyright term extension. I will argue that the use of copyrighted works in the context of this case study constitutes protectable expression, and that core provisions of Canada’s Copyright Act infringe the Charter right to freedom of expression in purpose and effect. As well, I will argue – drawing in particular from the SCC’s decision in Saskatchewan (Human Rights Commission) v. Whatcott – that these provisions might not be justified under s. 1. Lastly, I will address the remedies that might be granted by a court should it conclude that provisions of the Copyright Act unjustifiably infringe s. 2(b) of the Charter. Ultimately, I will demonstrate that there are serious questions to be answered with respect to whether provisions of Canada’s Copyright Act unjustifiably infringe the Charter right to freedom of expression. It is time for Canadian courts to move past Michelin and to reconsider copyright’s constitutionality.