Reforme du droit d’auteur et interpretation judiciaire - Mistrale Goudreau

From "Radical Extremism" to "Balanced Copyright" : Canadian Copyright and the Digital Agenda

Chapter Six

Réforme du droit d’auteur et interprétation judiciaire
Mistrale Goudreau

For many years Canada has pursued a broad copyright reform process. Several proposals to amend the Copyright Act have been brought before Parliament, some of which have resulted in important legislative modi- fications while other bills have died on the Order Paper. These legislative efforts received wide public attention but may have obscured the fact that the courts have greatly contributed to the design of the Canadian copyri- ght regime. Key legislative concepts such as the criteria of “originality”, the “substantial part” test, and the “fair dealing” exception have relied on caselaw for their definition. On the other hand, legislative reforms have been ad hoc, with very detailed and narrow provisions. Because of this ap- proach to drafting, the courts have been presented with difficult statutory interpretation challenges and to some extent have adopted unconventio- nal solutions. Bill C-32, if enacted, will also involve issues of interpretation which will require the courts’ productive intervention.

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