Jenna on Gomery

It was very interesting to hear Justice Gomery’s explanation of copyright law. Understanding that not everybody in this class is a lawyer, one area that I would have liked to hear him discuss in greater detail is the division between federal and provincial jurisdiction over copyright law. Although Justice Gomery highlighted that copyright law is Federal jurisdiction, one may be able to argue that copyright law forms part of intellectual property. If it can be successfully argued that intellectual property is considered “property” (and this is debatable for reasons beyond the scope of this reflection paper), then it could be argued that the provincial government is capable of legislating on intellectual property. This is because “property and civil rights” is subject to provincial jurisdiction (see s. 92(13) of the Constitution Act, 1867).
To me, this idea is potentially quite important because Justice Gomery spent much of his lecture discussing the Federal government’s various delays in properly adjudicating copyright law. Some examples include the first enactment of copyright law almost 60 years after the introduction of the Constitution, another 60 year delay to amend the original Copyright Act, the 10 year delay in properly setting up the Copyright Appeal Board and most importantly, the continual dissolutions of Parliament thwarting any opportunity to update existing Copyright law.
Without engaging in a full discussion of constitutional law, a principle of constitutional interpretation called “the double aspects” doctrine may successfully be employed if intellectual property were considered property. The double aspects doctrine tells us that laws at both levels of government that regulate a similar subject matter could be upheld. Often, the double aspects doctrine is overtaken by the “paramountcy doctrine” which gives precedence to federal law when laws at two levels of government are in dispute. That said, the double aspects doctrine could usefully be employed to fill some legislative gap until the other level of government decides to act.
The reason that I raise these constitutional law principles is because Justice Gomery’s discussion of copyright law made it very clear to me that the federal government is doing a very poor job in keeping copyright law up-to-date with changes in technology. While I side with others in this class that the copyright bills that died on the order paper were hugely flawed, the status quo is not the answer to the copyright issues with which we are faced. For this reason (notwithstanding our own governmental instability in Quebec), I think it may be possible for provincial governments to start to do something about copyright law. While the provincial governments may not be able to enact a sustainable solution if the federal government ever does pass a new copyright bill, it may still be a worthwhile exercise for to undertake. I say this because as mentioned, the federal approaches to copyright to date have been deficient. Perhaps, a well-reasoned provincial position can be influential on whatever modifications are to be made to existing copyright law in the future.