Taking User Rights Seriously

Abstract

This paper provides an understanding of the centrality of the public domain in Canadian copyright jurisprudence. The paper develops this understanding along four distinct yet related axes. First, it discusses the role of the public domain in the very formation of the author's right by way of the "originality" requirement. Second, it examines the role of the public domain in the limitation of the scope of the author's right by way of the "fair dealing" defense. Third, it sketches the ways in which the concept of user rights catalyzes a deepening of our conception of the wrong at stake in copyright law - that is, of the mischief that the Copyright Act targets. This conception supports a view of the legitimacy of incidental reproductions in the course of Internet "browsing" as a user right. And fourth, by way of conclusion, the paper briefly describes a vision of the purpose of copyright law in which the centrality of user rights is absolutely non-negotiable.