Copyrights, Federalism & Private Copying

jeremy debeer, University of Ottawa

Abstract

This paper explores the scope of Parliament's authority under the Copyrights clause of the Canadian Constitution. Particular consideration is given to the overlap between Copyrights, which is within federal jurisdiction, and Property and Civil Rights, which is the legislative domain of the provinces. As a concrete example, this paper assesses the constitutionality of Canada's private copying levy. Because the levy has been interpreted very broadly, it is arguably in pith and substance a matter of Property and Civil Rights. Significant re-interpretation could narrow the scope of the levy and bring it within federal jurisdiction over Copyrights. Otherwise, the levy may not be sufficiently integrated with an overall valid scheme to withstand scrutiny. More generally, this paper concludes that Canada's Copyrights clause does not give Parliament carte blanche to enact cultural, economic, technological or regulatory policies under the auspices of the Copyright Act. Copyrights legislation must remain tightly linked to authors' cultural creativity, and not unduly compromise other Canadians' property and civil rights.