Copyright is accepted without question as a right; fair dealing has been acknowledged as having that same stature through our highest court’s designation of fair dealing as a user’s right. Yet begrudging token acceptance, or continued dismissal, is a still-too-frequent reaction to the dialogue of user rights. The impediment to unreserved recognition of user rights appears to be the uncomfortable realization that by extending rights to include fair dealing, copyright loses its supremacy. A reaction that might feel eerily familiar to every minority group which has sought to: (i) be granted the same stature as that of the ruling majority; and (ii) be treated with equal respect thereafter.
As an academic exercise, this author probed the connection between Canada’s particular history of equality rights and fair dealing to unexpected discovery: the Copyright Act is trijural. While currents of common law and civil law are statutorily evident, Indigenous legal traditions underpin the system of copyright itself. Such tradition appears through two vital characteristics: (i) the public domain, the very premise upon which copyright obtains its legitimacy, is a living practice among aboriginal communities; and (ii) the practice of creativity shows more affinity to the community-minded ethos of Indigenous cultures, than to the presumption of solitary genius espoused by the Romantics.
Quite apart from the challenges regarding the ambit of copyright and the application of exceptions, much as we acknowledge that physical ground beneath our feet is Indigenous territory, we ought also to acknowledge the Indigenous foundation of copyright law.
Meera Nair is the Copyright Officer for the Northern Alberta Institute of Technology. She received a doctorate in communication in 2009; her research interest lies in systems of copyright. In 2012 she was awarded an Azrieli international postdoctoral fellowship for a comparative study between Canadian and Israeli copyright law. Meera also authors the blog Fair Duty (https://fairduty.wordpress.com/); further details regarding her research and fair dealing advocacy can be found there
