Faced with a rapidly evolving technological landscape—one in which near-perfect copies of digital content can be created and disseminated with minimal cost and unprecedented ease—copyright owners have sought to exercise greater control over expressive works. In many cases, they have undertaken this task by harnessing the very same technological forces that threaten to disrupt their traditional business models: monitoring online activity and responding to potentially infringing uses with thousands of cease- and-desist letters; licensing rather than selling digital works; or locking down content with technological access and control measures. These attempts at enhanced protection merit concern because their effectiveness is, for the most part, not limited by the scope of rights granted to copyright owners under the Copyright Act. Unrestrained by copyright's statutory limits (including the restriction against copyrighting works in the public domain) and internal safety- valves (such as fair dealing), content holders are now able to routinely overreach the boundaries of copyright law and abuse their limited statutory grant of rights in copyrighted works. This behaviour, which I refer to generally as “overreach and abuse,” can be classified into two broad categories. The first category includes protective measures that, although procedurally valid, cannot ultimately be substantiated in law. Labelled by commentators as “copyfraud,” these actions involve content holders increasingly laying claim to rights in expressive works that have little or no basis in copyright law. Backed by threats of litigation, these spurious claims often go uncontested due to the power imbalance existing between owner and user groups. The second category includes protective measures that are substantively legal, but entirely divorced from the statutory domain of copyright law. Contractual agreements—many of which are subject to considerable inequality of bargaining power—and an array of technological protection measures or “digital locks”—which can be further supported by anti-circumvention laws—are being employed with increasing frequency by content owners. The result is a comprehensive system of legally enforceable barriers to expressive works that often trump copyright law, the terms of which are set almost entirely by private entities. Taken together, these two categories of behaviour not only tip the balance in favour of content holders, rendering users' rights such as fair dealing largely ineffectual, but also threaten to marginalize the application and therefore relevancy of copyright law as a whole. Increasingly, copyright is being displaced by a comprehensive “privately defined rights regime.” In response to this trend, courts, copyright users and legal scholars have begun to look outside the statutory confines of copyright law in the hope of identifying legal tools capable of restoring a degree of balance to the regulation and control of expressive works. One avenue currently being pursued in the United States is the doctrine of copyright misuse, an equitable defence to copyright infringement that arises when a copyright owner has “misused” his or her copyright. Where the Copyright Act is silent or unable to prevent content holders from overstepping the bounds of copyright law, the doctrine of copyright misuse provides owners with an incentive to respect the statutory limits of copyright, lest they risk losing the ability to enforce certain legal claims until the behaviour constituting misuse has been remedied. Although Canada is vulnerable to many of the same forces of overreach and abuse as the United States, no doctrine comparable to copyright misuse currently exists in Canadian law. This may simply be due to the relatively short history of copyright misuse in American jurisprudence, but is likely also attributable to a previous lack of a clearly articulated justification for the doctrine’s existence in Canada. However, the Supreme Court of Canada in a “trilogy” of copyright cases has recently filled that purposive vacuum. The notion of balance between dual objectives, the concept of users' rights and an increasingly economic and instrumentalist understanding of copyright law—all principles to emerge from the trilogy—provide strong support for a “made-in-Canada” approach to copyright misuse. Although unlikely to stem the tide of overreach and abuse completely, the doctrine would serve to uphold the statutory limits of copyright, helping to ensure the Copyright Act’s continuing role as the dominant means of regulating expressive works in Canada. This paper is divided into four parts. Part I canvasses the growing phenomenon of overreach and abuse by content holders. Two broad categories of behaviour are explored, revealing the need for a judicial doctrine capable of responding to the threats posed to copyright law as a result. Part II examines the American doctrine of copyright misuse as a tool to address instances of overreach and abuse. Its recent emergence from the related doctrine of patent misuse is discussed, along with its various doctrinal approaches and potential for future growth and expansion. Part III justifies the importation of the copyright misuse doctrine into Canadian law. The recent articulation of copyright's purpose by the Supreme Court of Canada is proposed as a justificatory basis for the doctrine's recognition, and concerns relating to the viability of copyright misuse in Canada are also addressed. Part IV contains a brief conclusion.
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Martin Twigg, "Copyright Misuse: Protecting Copyright in Canada from Overreach and Abuse" (2012) 21 Dal J Leg Stud 31.