A Matter of Construction: Revisiting Canada's Copyright Act Paramountcy over the Common Law

Abstract

The separateness of the Copyright Act from the common law has been somewhat taken for granted by the legislator and the judiciary. This book chapter applies the statutory interpretation principles that mediate the relationship between legislation and the common law as a principled approach to better situate the Copyright Act in relation to the common law and by the same token, copyright law in relation to private law. This chapter challenges the assertion that the Copyright Act is an exhaustive code, and points to the over-reliance on copyright’s distinctiveness from the common law, both at the legislative stage, and by the judiciary. It does so with specific examples from the Copyright Act, including statutory remedies, technological protection measures (TPMs), and the right to repair. Statutory interpretation principles guide both the legislator and courts on how the balance of powers should be exercised between the legislative arm and the judiciary. This balance of powers needs to be exercised carefully in the realm of copyright law. Its scope looms large in the regulation of the information society and digital marketplace, and its construction away from general principles of private law has led to unfortunate consequences. The chapter concludes by reaffirming the nature of copyright law as private law. The authoritative power conferred on judges in constructing the Copyright Act should set aside any tendency to treat copyright law, or other statutory law governing relationships between private parties, differently than spheres of private law derived primarily from judge-made law.