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University of Toronto Law Journal 56.1 (2006) 75-114

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Putting the Community In communication:

Dissolving the Conflict between Freedom of Expression and Copyright

Assistant Professor, Osgoode Hall Law School.


This article is concerned with the relationship between freedom of expression and copyright law and, more fundamentally, with what this relationship – its conflicts, tensions, and attempted resolutions – can reveal to us about the nature of the copyright interest. Freedom of expression protects an individual's right to express herself without limitations imposed upon the content of her speech, while copyright law prevents an individual from expressing herself through another's copyrightable expression. In the American context, this apparent inconsonance led Melville Nimmer to ask, 'Is not [the Copyright Act] precisely a "law" … which abridges the 'freedom of speech' and 'of the press' in that it punishes expressions by speech and press when such expression consists of the unauthorized use of material protected by copyright?'1 With this question in mind, it would not seem far-fetched to suggest that an absolutist conception of the right of free expression could render the Copyright Act unconstitutional. But then, as Nimmer takes care to point out, the 'reconciliation of the irreconcilable, the merger of antitheses … are the great problems of the law.'2 When irreconcilable assertions are embodied in competing individual rights, reconciliation tends to be proffered in the language of 'balance,' 'compromise,' or 'trump.' These words embody the analytic tools by which the interface between copyright protection and the right of freedom expression has typically been shaped and defined. In the discussion that follows, I hope to show that these words are inadequate tools for the task.

Having locked potentially antagonistic rights into 'logic-tight compartments,'3 Canadian courts have been surprisingly successful at maintaining [End Page 75] the separation of freedom of expression considerations and copyright law. However, given the nature of the copyright interest, there are necessarily moments where both copyright and the right of free expression are irrefutably at play, and apparently in conflict. In such instances, this neatly compartmentalized understanding leads to an overly simplistic resolution: one concern is temporarily given precedence over the other (balance), forced to give up ground (compromise), or made to give way completely (trump). The characterization of copyright as a species of private property entitlement tends to afford it moral and legal primacy. This causes free expression concerns to give way to private copyright control and, I will argue, thereby shifts copyright law further from the justificatory foundations upon which it stands.

My purpose in this article is to show that the characterization of copyright and freedom of expression as individual rights vested in the liberal subject undermines the importance of both sets of interests and ultimately restricts the communicative activity that both copyright and freedom of expression are intended to further. The social values that lie at the core of the copyright system are the same as those affirmed by our belief in the guarantee of freedom of expression: the value that we attach to communication, to interaction between members of society, and to participation in a social dialogue. The key to understanding the relationship between freedom of expression and copyright is to see them both in light of their mutual goal: that of maximizing cultural flows and channels of communication between members of society. To ensure the effectiveness and legitimacy of copyright, it must therefore embrace the values of freedom of expression, for these values are its own. Premised upon this assertion, my argument will be that a vision of copyright as a private, proprietary entitlement capable of trumping free expression interests disrupts the internal coherence of the copyright system. Rather than purporting to reconcile the irreconcilable, then, copyright policy should concern itself with fostering the human, creative capacities that it is intended to encourage. To the extent that it does so, no antitheses require resolution.

In Part II of this article, I describe the conflict that exists at the level of individual rights between...


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