Step in the Wrong Direction: The Impact of the Legislative Protection of Technological Protection Measures on Fair Dealing and Freedom of Expression

Authors

Graham Reynolds

Keywords

Technological protection measures, fair dealing, freedom of expression

Abstract

This paper will investigate whether legislation granting protection to TPMs infringes the freedom of expression (s. 2(b)) guarantee as contained in the Canadian Charter of Rights and Freedoms. This paper will proceed in five parts. Part I will discuss Bill C-60 and the legislative protection of TPMs in Canada. Part II will discuss the effect of TPMs on fair dealing. Part III will analyze whether the freedom of expression guarantee can be used to challenge provisions in the Copyright Act. Part IV will evaluate whether amendments to the Copyright Act granting protection to TPMs are consistent with the freedom of expression guarantee (s. 2(b)) in the Charter. Part V will investigate the treaty implications of protecting a right to access works for fair dealing purposes within legislation granting protection to TPMs.

This paper concludes that should the Canadian government amend the Copyright Act to provide legislative protection for TPMs, it must create a corresponding right for users to access copyright-protected expression for fair dealing purposes. Otherwise, the provisions may not survive Charter scrutiny. Although this paper will discuss this topic with reference to Canada, materials will be used from other jurisdictions in building this discussion. As well, the general argument in this paper may be helpful in addressing the interplay between copyright, fair dealing, and freedom of expression rights in other jurisdictions.

Recommended Citation

Graham Reynolds, "Step in the Wrong Direction: The Impact of the Legislative Protection of Technological Protection Measures on Fair Dealing and Freedom of Expression" (2006) 5:3 CJLT.