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.

This thesis analyses in depth the seminal cases of the Court of Justice, namely C-341/05 Laval, C-438/05 Viking Line and C-346/06 Ruffert. The analysis starts with description of the decisions. Those are laid out both from the perspectives of the Advocates General and of the Court of Justice (chapter 2). Central aspects of the decisions are analysed in chapter 3. First, it is the decision to apply Community law (now EU law) to national social policy. This is not new in itself, but it is taken to unusual depth. Second, the Court of Justice decided to apply Community law to trade unions. This horizontal application of Community law has crucial implications on the human rights discourse of the Court. Third, we analyse how the Court viewed the issue whether the strike action violated the Treaty, and the issues of justification and proportionality. Chapter 4 focuses on human rights aspect of the decisions. The very use of human rights in Community law is briefly sketched. In more detail the implications of the likely accession of the European Union to the European Convention on Human rights are considered. Finally, the human rights discourse of the Court of Justice in the Laval and Viking cases is put to critical scrutiny. One of the determining elements in Laval and Viking is application of the Treaty...

Submitted by Maria Aparecida (cidazen@gmail.com) on 2017-04-26T14:41:03Z No. of bitstreams: 1 Denisson Gonçalves.pdf: 2137540 bytes, checksum: 6d45b85c224614c1d0ac06f3d7d37728 (MD5) / Made available in DSpace on 2017-04-26T14:41:03Z (GMT). No. of bitstreams: 1 Denisson Gonçalves.pdf: 2137540 bytes, checksum: 6d45b85c224614c1d0ac06f3d7d37728 (MD5) Previous issue date: 2017-02-09 / Nowadays, the deficiency is a multidimensional thematic, approached by the most various areas of the Science, from the spheres of health, like medicine, to Social Sciences, such as Law and Politics. However, this plurivision is something recent, so that until the middle of the 21st century a purely biomedical perspective of the phenomenon of disability prevailed in a hegemonic way, considering it as pathology. The social model of disability emerges as an innovative paradigm, defining disability as the livingness in bodies with impairments in environments with barriers. In these terms, it becomes part of human diversity, not a stigma. In spite of this interpretative revolution, the deficiency is still governed by common standards, by charitable attitudes or even relegated to social invisibility. The Brazilian Law contains a vast number of protective norms for people with disabilities, however, they need enforcement. This misfortune is due in part to the lack of studies on this topic from a legal perspective. Furthermore, even within the sociology of health, the social model is still poorly diffused. Therefore, the objective of this work is to analyze the social model of disability from a Law perspective, showing "if" and "how" the internal legal system is adopting such archetype. The methodology used was the analysis of the content of national and international decisions and legislations, as well as the bibliographic review about the disability. The results found in this study show that the Brazilian State has a mechanism to enforce the rights of people with functional diversity, though, obstacles, such as invisibility, prejudice and socioinstitutional disengagement represent environmental barriers that generate and promote the exclusion of the disabled. / Hodiernamente, a deficiência é uma temática multidimensional, podendo ser abordada pelas mais variadas áreas da Ciência, desde as esferas da saúde, como a medicina, até as Ciências Sociais, como o Direito e Política. Entretanto, esta plurivisão é algo recente, de maneira que até meados do século XXI prevalecia de modo hegemônico uma perspectiva puramente biomédica do fenômeno da deficiência, considerando-a como uma patologia. O modelo social da deficiência surge como um paradigma inovador, definindo deficiência como a vivência em corpos com impedimentos em ambientes com barreiras. Neste sentido, ela se torna parte da diversidade humana e não um estigma. Apesar dessa revolução interpretativa, a deficiência ainda é governada pelos ditames do senso comum, por posturas caritativas ou mesmo relegada à invisibilidade social. O Direito brasileiro contém um amplo rol de normas protetivas das pessoas com deficiência, que contudo, carecem de densificação. Essa mazela deve-se em parte a carência de estudos sobre a temática pela ótica jurídica. Ademais, mesmo no âmbito da sociologia da saúde, o modelo social ainda é pouco difundido. Portanto, o objetivo deste trabalho é analisar o modelo social da deficiência pela perspectiva do Direito, demonstrando “se” e “como” o ordenamento jurídico interno está adotando tal arquétipo. A metodologia utilizada foi a análise de conteúdo de decisões e legislações nacionais e internacionais, bem como a revisão bibliográfica sobre a deficiência. Os resultados encontrados demonstram que o Estado brasileiro dispõe de mecanismo de efetivação dos direitos das pessoas com diversidade funcional, todavia, óbices, como a invisibilidade, preconceito e descomprometimento socioinstitucional representam barreiras ambientais que geram e promovem a exclusão dos deficientes.

The topic of this thesis is the prolonged denial and eventual recognition of the rights of the Indigenous peoples of Australia following the British assertion of sovereignty. The analysis considers the manner in which the denial and subsequent recognition of Indigenous rights has affected the system of government of the dominant society (the Commonwealth of Australia) in terms of the establishment and evolution of the constitutional framework and associated processes of institutional change in the principles, structures and procedures of the system of government. The primary jurisdiction in which this topic is explored is the Northern Territory of Australia; the primary contexts are the recognition of Indigenous land rights (defined broadly to include associated natural and cultural heritage and resource rights) and the Indigenous right to self government within ‘the state’ (the internationally constituted and recognised polity of the Commonwealth of Australia). / The thesis draws on analogous developments in Canada and New Zealand to demonstrate that, while significant progress has been made in the recognition of Indigenous rights since the 1960s, many forms of recognition remain conceptually and procedurally limited. In particular, associated regimes have almost invariably been devised and implemented within a fundamentally monocultural context in which Indigenous rights remain subject to unilateral abrogation or extinguishment by Commonwealth governments. In addition, the legal basis of and requirements for recognition of Indigenous rights according to Commonwealth law result in extremely variable levels of recognition in different areas and contexts, and principles and procedures for the mutual recognition and co-existence of Indigenous and Commonwealth law and systems of government are only partially apparent in the Federal and Northern Territory systems of government. In addition to extending and deepening the recognition of Indigenous rights throughout all relevant institutions of the system of government, to address these deficiencies the thesis argues that constitutional recognition and protection of Indigenous rights and the negotiation of treaties are essential if the Indigenous right of self-determination is to be respected and accommodated by the dominant society.

Thesis (doctoral)--Univ. Köln, 2006. / Includes bibliographical references (p. [xxxiii]-lxxxix)

Thesis (Ph. D.)--University of Washington, 2006. / Vita. Includes bibliographical references (leaves 212-232).

Thesis (J.C.L.)--Catholic University of America, 1989. / Includes bibliographical references (leaves 48-55).

Diss. Uppsala : Uppsala universitet, 2005.

Thesis (J.C.L.)--Catholic University of America, 2007. / Includes bibliographical references (leaves 66-71).

Thesis (J.C.L.)--Catholic University of America, 2006. / Includes bibliographical references (leaves 73-78).