Our study pertains to the contractual overridability of copyright by the use of end user licence agreements. Our analysis is divided into three parts: first, we try to solve which legislator is responsible of the contractual overridability of copyright according to Canadian federalism. In the second part, we examine the contractual overridability issue under copyright law and we consider multiple doctrines that can be used to protect the copyright balance and its exceptions. The third part, is devoted to the study of the contractual overridability under provincial private law. / Under copyright law, the most important remedies are definitely the copyright balance and exceptions imperativity and the copyright misuse doctrine. Private law can already be used to intervene under the true and informed consent requirements, the Consumer Protection Act specificities and the abuse of right theory.

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This thesis analyses the nature and common law history of copyright, highlights the problematic aspects of the current Canadian legislation with respect to archival material, proposes revisions to the law which would take into account the special nature of this material, and provides some suggestions to archivists who have to deal with the copyright dilemmas encountered in the daily, routine administration of an archival institution. Copyright legislation has traditionally grouped archival and library material under one section on special exemptions, notwithstanding the fact that archival material has characteristics which dictate a treatment fundamentally different from that of library material. Therefore, this thesis focuses on copyright as it relates specifically to archival material in order to present recommendations for its adequate treatment under the copyright law. This is not a legal paper, and does not presume to give an exhaustive legal study of all of the ramifications of copyright legislation. It is intended as a review of those copyright issues which are of special interest to archivists. Because Canada derives its common law tradition from Great Britain and is often influenced by American legislation, the earlier British legislation and more recent copyright legislation in the United States and Great Britain are studied and compared to the present Canadian legislation. Because legal trends generally first appear in court decisions before they become codified in statute, decisions found in recent case law, as well as their discussion in current legal literature are examined. The official recommendations which have been made to the Canadian government for the revision of copyright law are also analyzed. It is concluded that the Canadian statute must be revised to reflect the unique nature of archival material. Archival documents are not created for sale, distribution, display, or publication. They are the instruments of transactions, natural by-products of practical activities, means to purposes; they lack the autonomy of final products, and are non-commercial by nature. This thesis recommends that a separate piece of copyright legislation for archival material be introduced to deal effectively with these unique characteristics.

The interface between copyright law and competition law has always been a topic of debate in legal and economic circles. Since the last decade however, new economy markets pose new challenges to this interface. Network effects, interconnectivity, rapid innovation, and excludability are characteristics of new economy markets. Particularly network effects can, in connection with copyright protection, increase market power and provoke competition authorities to monitor the exercise of copyrights. / This thesis contains an analysis of the background and underlying principles of Canadian copyright law and competition law. It gives an overview over their interface in the legislation and the impact of competition policy on copyright litigation. It also examines the Intellectual Property Enforcement Guidelines that were issued by the Canadian Competition Bureau in September 2000. / The thesis concludes that competition law and copyright law are complementary instruments that serve the same goals. The two bodies of law are drafted so that they would not oppose one another. Instead of curbing copyright protection through competition policy enforcement, new challenges posed by new economy markets should be met by rethinking copyright policy and protection in these markets.

This thesis studies the impact of North American copyright on technological development. The first section proposes a broad vision of copyright including both Canadian and American legal concepts. It analyses different modern definitions of copyright, the origin of the concept and its underlying justifications. The second section presents the historical relations between copyright and technologies. It studies the history of the printing press, the photography, the player-piano, the motion picture, the radio, the cable TV, the photocopier, the videotape, the Digital Audio Tape and the MP3, and the legal challenge they represented. Those elements give us the opportunity to evaluate the influence of copyright on technological development.

This thesis analyses the nature and common law history of copyright, highlights the problematic aspects of the current Canadian legislation with respect to archival material, proposes revisions to the law which would take into account the special nature of this material, and provides some suggestions to archivists who have to deal with the copyright dilemmas encountered in the daily, routine administration of an archival institution. Copyright legislation has traditionally grouped archival and library material under one section on special exemptions, notwithstanding the fact that archival material has characteristics which dictate a treatment fundamentally different from that of library material. Therefore, this thesis focuses on copyright as it relates specifically to archival material in order to present recommendations for its adequate treatment under the copyright law. This is not a legal paper, and does not presume to give an exhaustive legal study of all of the ramifications of copyright legislation. It is intended as a review of those copyright issues which are of special interest to archivists. Because Canada derives its common law tradition from Great Britain and is often influenced by American legislation, the earlier British legislation and more recent copyright legislation in the United States and Great Britain are studied and compared to the present Canadian legislation. Because legal trends generally first appear in court decisions before they become codified in statute, decisions found in recent case law, as well as their discussion in current legal literature are examined. The official recommendations which have been made to the Canadian government for the revision of copyright law are also analyzed. It is concluded that the Canadian statute must be revised to reflect the unique nature of archival material. Archival documents are not created for sale, distribution, display, or publication. They are the instruments of transactions, natural by-products of practical activities, means to purposes; they lack the autonomy of final products, and are non-commercial by nature. This thesis recommends that a separate piece of copyright legislation for archival material be introduced to deal effectively with these unique characteristics. / Arts, Faculty of / Library, Archival and Information Studies (SLAIS), School of / Graduate

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