Get access to the full article
First, my sincere thanks to the Donald C. Brace Lecture Committee and your Society’s President and Vice-President for honouring me with their invitation to give this year’s lecture. I am indeed thrice honoured — first, by being in the company of the very distinguished speakers who have preceded me; second, as the first non-American to give this lecture; and third — and by no means least — by giving a lecture named for Donald C. Brace. My late father-in-law Jack McClenaghan was a journalist and writer in New Zealand, and it was Harcourt Brace & World — the firm co-founded by Donald C. Brace — which published Jack’s first novel Moving Target in the U.S. in 1966. The cover calls the book “A novel of survival” and it’s about a hunt for an army deserter in the mountain wilds of New Zealand during the Second World War. Jack retained the copyright, which he later parlayed into an option on the movie rights. Sad to say, no movie resulted — Dustin Hoffman was otherwise occupied — but the proceeds from the rights Jack retained made a big difference to his family’s life. It also helped Jack keep writing. Were he here today, Jack would have toasted Donald Brace — as I do now, in their absence. It was suggested that I speak on a development in copyright law in Canada that was thought to be of possible interest to Society members: User Rights — the rights people have to use a copyrighted work without interference from the copyright owner. The development of this concept is also a tale of survival — the survival of an idea that has existed since the dawn of copyright but got deserted in the twentieth century — only to return as a survivor in the twenty-first. My title “User Rights: Fair Use and Beyond” is meant to suggest four related phenomena: First, that user rights may extend beyond fair dealing — Canada’s version of fair use — and that they may encompass any statutory or other defence. Second, that they may extend beyond defences and have substantive effect. Third, that the concept may extend beyond copyright and be applied to other IP rights. *Professor of Intellectual Property Law, Osgoode Hall Law School, York University, Toronto; Emeritus Professor of Intellectual Property & Information Technology Law, University of Oxford. 338 Journal, Copyright Society of the U.S.A. Fourth, that such user rights may extend beyond Canada geographically