Conflict between Contract Law and Copyright Law in Canada: Do Licence Agreements Trump Users’ Rights?

31 Pages Posted: 14 Feb 2014

See all articles by Lisa Di Valentino

Lisa Di Valentino

University of Massachusetts Amherst

Date Written: January 4, 2014

Abstract

I argue in this paper that it is not a settled issue in Canadian law that copyright exceptions provided in the Canadian Copyright Act can be trumped by contractual agreement, and that a strong argument can be made that they cannot. I first frame the issue by discussing the increasing use of digital rather than print materials in academic libraries, and the potential conflict between subscription agreements and the Copyright Act. I then address three approaches (jurisdictional, purposive, and statutory right) that can be taken to determine whether contractual terms are preempted by statutory provisions, and conclude that, in Canada, copyright exceptions are statutory rights that cannot be removed by contract. Finally, I briefly discuss technological protection measures and argue that their recent inclusion in the Copyright Act does not necessarily indicate legislative support for private ordering.

Keywords: copyright, contract, licence, license, subscription, preemption, statutory rights, fair dealing, exceptions, Canada

Suggested Citation

Di Valentino, Lisa, Conflict between Contract Law and Copyright Law in Canada: Do Licence Agreements Trump Users’ Rights? (January 4, 2014). Available at SSRN: https://ssrn.com/abstract=2396028 or http://dx.doi.org/10.2139/ssrn.2396028

Lisa Di Valentino (Contact Author)

University of Massachusetts Amherst ( email )

Department of Operations and Information Managemen
Amherst, MA 01003
United States

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