Over the last decade, Supreme Court copyright jurisprudence has undergone dramatic changes, concurrent with governmental copyright reform initiatives. Both the Supreme Court and the government have used the popular but unhelpful language of “balance” to explain and justify their initiatives. Unfortunately, there is no consensus as to what constitutes an appropriate balance or how to facilitate this and the two initiatives have been moving in opposite directions. The changes in the Supreme Court have altered the purpose and application of copyright law in a way that favours user access to works. Conversely, had they passed, government amendments would have increased owner rights and incentives, moving in a protectionist direction and restricting access and use. This would have the potential to impede future innovation. This thesis suggests that balance is an inadequate metaphor, examines the differences between the Supreme Court and governmental conception of “balance” and proposes reasons for these differences.

Over the last decade, Supreme Court copyright jurisprudence has undergone dramatic changes, concurrent with governmental copyright reform initiatives. Both the Supreme Court and the government have used the popular but unhelpful language of “balance” to explain and justify their initiatives. Unfortunately, there is no consensus as to what constitutes an appropriate balance or how to facilitate this and the two initiatives have been moving in opposite directions. The changes in the Supreme Court have altered the purpose and application of copyright law in a way that favours user access to works. Conversely, had they passed, government amendments would have increased owner rights and incentives, moving in a protectionist direction and restricting access and use. This would have the potential to impede future innovation. This thesis suggests that balance is an inadequate metaphor, examines the differences between the Supreme Court and governmental conception of “balance” and proposes reasons for these differences.