This thesis explores the intersection of freedom of expression (as protected in the Canadian Charter of Rights and Freedoms (Charter)) and copyright in Canada. In this thesis, I argue that both lower Canadian courts and the Supreme Court of Canada (SCC) should reconsider their approaches to this intersection. Lower Canadian courts have consistently rejected arguments that provisions of Canada's Copyright Act unjustifiably infringe the Charter right to freedom of expression. The SCC, on the other hand, has consistently interpreted provisions of the Copyright Act in such a manner as to result in expanded protection for the expression interests of non-copyright owning parties. It has done so not by relying explicitly on the Charter right to freedom of expression, but through a process of statutory interpretation. I argue that both approaches merit reconsideration. Specifically, I argue that the approaches adopted by lower Canadian courts to the intersection of the Charter right to freedom of expression and copyright are based on now-invalidated approaches to both copyright and to freedom of expression, and are thus themselves invalid; that to the extent to which the SCC's approach to this intersection assumes that the Charter right to freedom of expression can be protected, in the context of copyright, through statutory interpretation alone, that it fails to adequately protect the Charter right to freedom of expression; that other leading national courts from which the SCC has previously sought assistance have explicitly engaged with this intersection, and that the SCC should follow suit; and that the SCC's own copyright and freedom of expression jurisprudence suggests that provisions of the Copyright Act may unjustifiably infringe the Charter right to freedom of expression. These four arguments, taken together, suggest that the time is ripe for reconsideration of this intersection.

The purpose of this study is to investigate the practices of Canadian repositories in making their archival holdings available on the Internet to see whether they are more or less restrictive than copyright law requires. The Internet provides an opportunity to make archival material more widely accessible; however, repositories’ copyright practices in making their holdings available online may affect the extent to which wider access to archival material is actually achieved. The study employed four different sources of evidence, i.e., the website content of 154 Canadian repositories whose websites feature archival material from the repository’s holdings; copyright policy and procedure documents of those repositories; 106 responses to a questionnaire sent to the staff of those repositories; and 22 interviews with repository staff members. In terms of selection for online access, the study found that the repositories studied prefer to select items that are perceived to incur little risk of copyright infringement (because the copyright has expired or because the repository owns the copyright), or items that require few or no resources to investigate copyright status or obtain copyright authorizations. Thus, with regard to selection, repositories were more restrictive than the law required, largely due to lack of resources. Although repositories have no legal or professional obligation to enforce others’ copyright interests, they nonetheless attempt to control further uses of their online holdings through the use of technical measures (e.g., low resolution images, watermarks, etc.) or non-technical measures (e.g., conditions placed on further uses), for reasons not necessarily related to copyright. Overall, the study found that repositories’ practices in making their holding available online were more restrictive than copyright law envisages. While this may be due to factors other than copyright, access to online documentary heritage may be limited as a result.

The purpose of this study is to investigate the practices of Canadian repositories in making their archival holdings available on the Internet to see whether they are more or less restrictive than copyright law requires. The Internet provides an opportunity to make archival material more widely accessible; however, repositories’ copyright practices in making their holdings available online may affect the extent to which wider access to archival material is actually achieved. The study employed four different sources of evidence, i.e., the website content of 154 Canadian repositories whose websites feature archival material from the repository’s holdings; copyright policy and procedure documents of those repositories; 106 responses to a questionnaire sent to the staff of those repositories; and 22 interviews with repository staff members. In terms of selection for online access, the study found that the repositories studied prefer to select items that are perceived to incur little risk of copyright infringement (because the copyright has expired or because the repository owns the copyright), or items that require few or no resources to investigate copyright status or obtain copyright authorizations. Thus, with regard to selection, repositories were more restrictive than the law required, largely due to lack of resources. Although repositories have no legal or professional obligation to enforce others’ copyright interests, they nonetheless attempt to control further uses of their online holdings through the use of technical measures (e.g., low resolution images, watermarks, etc.) or non-technical measures (e.g., conditions placed on further uses), for reasons not necessarily related to copyright. Overall, the study found that repositories’ practices in making their holding available online were more restrictive than copyright law envisages. While this may be due to factors other than copyright, access to online documentary heritage may be limited as a result.

In becoming a signatory to the World Intellectual Property Organization (WIPO) Treaties, Canada has undertaken the obligation to provide protection against the circumvention of technological measures designed to protect copyright works. While on its face the obligation appears simple, in reality it brings about an intersection of policy, law and technology; a complex situation with far reaching repercussions. The U.S., a co-signatory to the WIPO Treaties, responded to this tension by enacting the Digital Milennium Copyright Act (DMCA), which heavily regulated circumvention technology and garnered wide-spread criticism. Critics labeled the law as unpredictable and overbroad legislation, which has chilled free speech, violated fair use, stifled research and study and encouraged monopolies by eliminating competition. Drawing largely on the U.S. experience, this thesis aims to suggest a possible route for Canada to take when fulfilling its own obligations under the WIPO. It will begin with a review of the relevant provisions of the Treaties to determine the extent of Canada's obligation. It will then examine Canada's proposal papers and the responses of its citizens to the questioned posed regarding future anti-circumvention legislation. It will also examine the DMCA in detail and attempt to distil its flaws. Finally, it will investigate the extent of the need for new anti-circumvention legislation in Canada by examining Canada's existing laws dealing with the protection of technology measures. Such process will provide evidence that Canada has, to a large extent, complied with its obligations under the WIPO while maintaining the delicate balance between the stakeholders of copyright law. Thus while new anti-circumvention legislation may still be in order, Canada has the latitude to craft a law that fully recognizes the rights of all stakeholders in the copyright equation and is consistent with its own copyright policies.

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