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Article: Property enforcement or retrogressive measure? Copyright reform in Canada and the human right of access to knowledge

TitleProperty enforcement or retrogressive measure? Copyright reform in Canada and the human right of access to knowledge
Authors
Issue Date2007
PublisherUniversity of Ottawa Law & Technology Journal (UOLTJ). The Journal's web site is located at http://www.uoltj.ca
Citation
University of Ottawa Law & Technology Journal, 2007, v. 4 n. 1-2, p. 163-241 How to Cite?
AbstractIs it true that, before the recent cases that are said to have redefined its path, Canadian copyright law was missing a purpose? This article presents an alternative view, based on domestic and international human rights law. It argues that the recent “upbringing” of users’ rights in Canada in reality reflects the implicit entrenchment of the so-called human right of access to knowledge in the domestic legal system. The article starts with a critical analysis of Canadian copyright case law, presenting some unsuspected problems in what the scholarly literature calls “the trilogy” – the group of cases that is believed to have unveiled the principle of balance in Canadian copyright law. It calls for an integral approach to users’ rights, which does not ignore the complex fabric of decisions that provides for the internalization of international human rights in Canadian law. Arguing that the Supreme Court of Canada should explicitly acknowledge this relation, the article sketches a framework for understanding how a human right of access to knowledge, if present in the international human rights system, would also be found within Canadian law itself. Finally, the article denies the supposed human rights nature of copyright, and, conversely, argues that several different instruments within the United Nations system provide solid grounds for grasping the existence of a human right of access to knowledge. Understanding, that users’ rights are human rights has important implications for copyright policy. The most important of all is the presumption against retrogressive measures, which would oblige those who push the ongoing process of copyright reform in this country to prove that any additional layer of protection would be legitimate within a human rights context.
Persistent Identifierhttp://hdl.handle.net/10722/145995
ISSN

 

DC FieldValueLanguage
dc.contributor.authorThompson, Men_US
dc.date.accessioned2012-03-27T09:05:17Z-
dc.date.available2012-03-27T09:05:17Z-
dc.date.issued2007en_US
dc.identifier.citationUniversity of Ottawa Law & Technology Journal, 2007, v. 4 n. 1-2, p. 163-241en_US
dc.identifier.issn1710-6028en_US
dc.identifier.urihttp://hdl.handle.net/10722/145995-
dc.description.abstractIs it true that, before the recent cases that are said to have redefined its path, Canadian copyright law was missing a purpose? This article presents an alternative view, based on domestic and international human rights law. It argues that the recent “upbringing” of users’ rights in Canada in reality reflects the implicit entrenchment of the so-called human right of access to knowledge in the domestic legal system. The article starts with a critical analysis of Canadian copyright case law, presenting some unsuspected problems in what the scholarly literature calls “the trilogy” – the group of cases that is believed to have unveiled the principle of balance in Canadian copyright law. It calls for an integral approach to users’ rights, which does not ignore the complex fabric of decisions that provides for the internalization of international human rights in Canadian law. Arguing that the Supreme Court of Canada should explicitly acknowledge this relation, the article sketches a framework for understanding how a human right of access to knowledge, if present in the international human rights system, would also be found within Canadian law itself. Finally, the article denies the supposed human rights nature of copyright, and, conversely, argues that several different instruments within the United Nations system provide solid grounds for grasping the existence of a human right of access to knowledge. Understanding, that users’ rights are human rights has important implications for copyright policy. The most important of all is the presumption against retrogressive measures, which would oblige those who push the ongoing process of copyright reform in this country to prove that any additional layer of protection would be legitimate within a human rights context.-
dc.languageengen_US
dc.publisherUniversity of Ottawa Law & Technology Journal (UOLTJ). The Journal's web site is located at http://www.uoltj.caen_US
dc.relation.ispartofUniversity of Ottawa Law & Technology Journalen_US
dc.rightsCreative Commons: Attribution 3.0 Hong Kong License-
dc.titleProperty enforcement or retrogressive measure? Copyright reform in Canada and the human right of access to knowledgeen_US
dc.typeArticleen_US
dc.identifier.emailThompson, M: marcelo.thompson@hku.hken_US
dc.identifier.authorityThompson, M=rp01293en_US
dc.description.naturepublished_or_final_version-
dc.identifier.hkuros199037en_US
dc.identifier.volume4en_US
dc.identifier.issue1-2en_US
dc.identifier.spage163en_US
dc.identifier.epage241en_US
dc.publisher.placeCanada-

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