Taking User Rights Seriously - Abraham Drassinower

Chapter 16

TAKING USER RIGHTS SERIOUSLY
Abraham Drassinower

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” defence. 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.

About the Author:

Abraham Drassinower teaches property, intellectual property, legal theory, and political theory at the University of Toronto Faculty of Law. He is currently working on a book providing a rights-based account of the public domain in copyright law. His recent publications include “A Rights-Based View of the Idea/Expression Dichotomy in Copyright Law” (2003) 16 Can. J. L. & Jur. 1; “Sweat of the Brow, Creativity, and Authorship: On Originality in Canadian Copyright Law” (2004) 1 UOLTJ 105; “Notes on the Public Domain,” in Intellectual Property Law, Volume 15 Molengrafica Series, (forthcoming 2005), Intersentia Publishers, Antwerpen; and Freud’s Theory of Culture: Eros, Loss and Politics (Lanham, Maryland: Rowman & Littlefield, 2003).

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