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The Theoretical Case Against Criminalized Copyright Infringement in Canada by Maria C. Dugas Submitted in Partial Fulfillment Of The Theoretical Case Against Criminalized Copyright Infringement in Canada by Maria C. Dugas Submitted in partial fulfillment of the requirements for the degree of Master of Laws at Dalhousie University Halifax, Nova Scotia December 2017 © Copyright by Maria C. Dugas, 2017 Table of Contents Abstract ....................................................................................................................................... iii List of Abbreviations Used ...................................................................................................... iv Acknowledgements ..................................................................................................................... v Chapter 1 - Introduction .......................................................................................................... 1 1. Historical Context & the Trend Towards Criminalized Infringement ..................................... 2 2. Identifying a Gap: The Need for a Systemic Theoretical Argument Against Criminalized Copyright Infringement ................................................................................................................................... 4 3. Thesis Structure and Outline .................................................................................................................. 10 Chapter 2 – Legal Scholarship & the Theoretical Justifications for Criminalized Copyright Enforcement .......................................................................................................... 13 1. Canadian Legal Scholarship ..................................................................................................................... 18 2. U.S. Legal Scholarship ................................................................................................................................ 28 3. Theoretical Justifications for Criminal Copyright Infringement .............................................. 43 4. Chapter Summary ....................................................................................................................... 44 Chapter 3 – Criminal Copyright Infringement is not Justified by Criminal Legal Theory ......................................................................................................................................... 47 1. Criminal Legal Theory .............................................................................................................................. 51 2. Criminal Legal Theory does not Justify Criminalized Infringement ....................................... 58 3. Criminalized Infringement is Inconsistent with the Doctrine of Restraint. ........................ 74 4. Chapter Summary ........................................................................................................................................ 76 Chapter 4 – Property Legal Theory does not Justify Criminalized Copyright Infringement .............................................................................................................................. 79 1. Copyrights are not Property; they are Legal Rights. ..................................................................... 83 2. The Analogy Between Theft and Copyright infringement is Unsound. ................................. 88 3. The Property Justification for Criminalization is Circular. ......................................................... 95 4. Chapter Summary ........................................................................................................................................ 96 i Chapter 5 – Copyright Legal Theory & the Positive Case for non-Criminal Enforcement of Copyright Infringement ............................................................................ 98 1. Copyright Legal Theory .......................................................................................................................... 100 2. Non-Criminal Enforcement is Effective. .......................................................................................... 107 3. Non-Criminal Enforcement is Consistent with Charter Values.............................................. 118 4. Chapter Summary ..................................................................................................................................... 122 Chapter 6 – Conclusion........................................................................................................ 125 1. Towards non-Criminal Copyright Enforcement in Canada ..................................................... 126 2. Conclusion ................................................................................................................................................... 131 Bibliography ......................................................................................................................... 133 ii Abstract Criminalized copyright infringement has existed in Canada for close to a century. It has continued to expand in scope and severity since its first appeared in the Copyright Act, 1921. As Canada approaches 2017’s scheduled review of the Copyright Act, the time has come to ask whether the criminalization of copyright and its enforcement is theoretically justifiable. Yet, Canadian scholarship on criminalized copyright infringement is particularly scarce; there is a noteworthy gap in the existing literature wherein no one has systematically argued against criminalized copyright infringement from a theoretical perspective. This thesis aims to fill that gap, setting out a systematic legal and theoretical argument that criminalized copyright infringement, whether for personal use or financial gain, cannot be theoretically justified. In the absence of theoretical justification, the Government should move to decriminalize copyright enforcement. iii List of Abbreviations Used ACTA Anti-Counterfeiting Trade Agreement DMCA Digital Millennium Copyright Act DRM Digital Rights Management IP Intellectual Property ISP Internet Service Provider NET Act No Electronic Theft Act SCC Supreme Court of Canada TPM Technological Protection Measure TPP Trans Pacific Partnership TRIPS Trade-Related Aspects of Intellectual Property Rights WCT WIPO Copyright Treaty WPPT WIPO Performances and Phonograms Treaty WIPO World Intellectual Property Organization iv Acknowledgements This thesis is not about race; its words show no outside indication that race is, in any way, a factor in its production. And yet, to me, that is the most important part. As an African Nova Scotian woman, I am thankful for my education and the opportunity to pursue an LL.M; an opportunity that, for various intersecting reasons, is often not available to people like me. This thesis would not have been possible without the guidance and support of many people. First and foremost, I am thankful to my family and friends for giving me the time and space to be cranky, to vent, and to ramble on and on about “this really interesting part of copyright law!” I want to thank Professor Penney for his insight and oversight of this project, without which this thesis would either be a much weaker version of itself, or incomplete. I want to thank Professor Currie and Professor Deturbide for their revisions and guidance throughout the drafting process, Professor Devlin for his input during the planning stages of this work, and Professor Ginn for setting me on the path to academia. I also want to thank all of the librarians in the Sir James Dunn Law Library for answering my never-ending research questions and allowing me to take up residence at my usual spot. I am thankful to Professor Williams and Dr. Dozier for their mentorship, their courage, and their inspiration as strong, educated black women. Finally, I need to thank my dog, Max – my trusted late-night study-buddy and proofreader extraordinaire, without whom I would have never survived round one of law school, let alone round two. v Chapter 1 - Introduction Canada has a unique tradition of copyright law.1 This uniqueness is evident from Canada’s early struggles to break from the Imperial Copyright Act of 1842 and enact its own copyright legislation.2 The Canadian copyright narrative is inextricably linked to the British Empire; “England is whence the soil from which the Canadian narrative comes.”3 Canada’s connectedness to the British Empire, its geographical proximity to the United States, and the influence of international obligations shaped the early development of Canadian Copyright Law, as they continue to shape its present-day development.4 The molding of Canadian Copyright Law through outside influence can be seen through the criminalization of copyright infringement and the continual increase of associated conduct and penalties.5 1 See e.g. Meera Nair, “The Copyright Act of 1889: A Canadian Declaration of Independence” (2009) 90:1 The Canadian Historical Review 1 [“Canadian Declaration”]. 2 Ibid at 2. See also 22-23. The British Empire resisted this move toward an independent Canadian copyright regime for two predominant reasons: first, they were concerned about the impact it would have on their attempts to negotiate an Anglo-American copyright agreement. Second, they believe that because Canada was a signatory of the Berne Convention, there was no need to enact independent legislation. 3 Daniel Gervais, “A Canadian Copyright Narrative” (2008) 11:5-6 Journal of World Intellectual Property 432. 4 Nair, “Declaration of Independence,” supra note 1. For modern influence, see e.g. Miriam Bitton, “Rethinking
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