Birth, Retreat and Renaissance: The Lifecycle of Balance under the Canadian Copyright Law
Currently, Canadian copyright law is not merely the law of authors. It acknowledges the rights of copyright holders and users as a means to a more valuable end, which is the public interest. The principle correlating such values is the principle of “balance”, which the Supreme Court of Canada has frequently endorsed as a purpose of the Copyright Act in many leading cases, namely Théberge, CCH, SOCAN and, very recently, Robertson. Because none of the mentioned cases discussed the origin or evolvement of balance, this article focuses on the lifecycle of this principle and the circumstances that have impacted its evolution. The article concludes that balance is not merely a contemporary judicial policy, but a doctrine rooted in Canadian copyright law that has gone through a lifecycle of birth, retreat and renaissance. Therefore, any prospective reform to the Canadian Copyright Act ought to consider articulating this principle explicitly as a legislative purpose. The article further concludes that legal reasons as well as a matrix of historical, economic, social, cultural and technological reasons are behind the recent emphasis on balance.
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