March 13, 2009 by Katherine Booth
Katherine Booth is a first year law student at Osgoode Hall and is taking the Legal Values: Challenges in Intellectual Property course.
Following the Supreme Court’s affirmation in CCH Canadian Ltd. v. Law Society of Upper Canada,  1 S.C.R. 339 [CCH], that fair dealing under s. 29 of the Canadian Copyright Act is a user right and not merely a “loophole” to owner rights, the following question arises: on what basis are these user rights justifiable?
Abraham Drassinower addresses this issue by theorizing a normative basis for a freestanding user right (“Authorship as Public Address: On the Specificity of Copyright vis-à-vis Patent and Trade-Mark”, 2008 Mich. St. L. Rev. 199). Authorship, Drassinower argues, presupposes a dialogue between authors and users. On the one hand, authors are users. In creating their work, authors necessarily draw upon pre-existing ideas and re-express them in an original form. On the other hand, users are authors. Because authored works present a dialogue to the public, they inherently engage the user to respond to the work and thus become an author in his or her own right. For Drassinower, then, fairness in copyright fair dealing must be consistent with the equal authorship claims of each party. His “egalitarian ethic of authorship” places natural limits on the extent of author rights, which stop short of preventing the user’s right to reproduce a work as part of the discourse between authors, and clears space for a positive formulation of user rights.