From fair dealing to fair duty: the necessary margins of Canadian copyright law

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Thesis type
(Dissertation) Ph.D.
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Author: Nair, Meera
Copyright law is one of our more explicit social institutions to regulate the flow of creative effort amongst individuals. Operating through a limited assignment of specific monopoly rights, copyright prescribes legitimacy upon communication. In this dissertation I examine the intricacies of this law via the intellectual contribution of Harold A. Innis (1894-1952). His expertise spanned communication, economics, and the law; the sphere touched by copyright. His passion for creating an atmosphere supportive of individual creativity has direct relevance to the goals of copyright. Copyright is deemed to encourage creative activity and protect creative individuals. Much as Innis’ work is (erroneously) subjected to charges of technological determinism, the trajectory of copyright law is often framed by the same inclination. Increases to the depth and breadth of copyright have followed in the wake of each advance in media technology. To some, this is evidence of a strict, and inescapable, causality. This sequence of events obscures other relevant cultural factors, namely the economic, social, geographic, and political dimensions of a society. And as a consequence, application of copyright relies less on legal rendition and more upon instilled perception. My dissertation examines the manner in which this perception is cultivated, and argues that this is leading to a stifling of intellectual endeavor. The very law that provides for legitimate mining of intellectual property to the advantage of the public domain is invoked in name to build protective walls around seeming private property, with licensed check points and tolls. Whereas through the exception of fair dealing, good faith productive uses of copyrighted work can sit with legitimacy. Innis’ theoretical perspective provides the backbone of this study; the contribution that regional entities, the margins if you will, can make to the goal of cultural florescence. Fair dealing, an exception on the margins of copyright, is critical to ensure creativity thrives. It draws heightened attention to the creative process and ensures that a measure of obligation to the system of creative exchange exists between current, past, and future creators. Fair dealing mandates fair duty for all parties concerned.
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