To:
The Canadian
Copyright Act 1921-2006
Historical,
Cultural, Economic, Legal & Political Significance
Harry Hillman Chartrand
Revised November 2006
Index
(i) International: Pursuit of ‘Cultural Sovereignty’
(ii) National: Quebec, the First Nations & Media Concentration
(iii) Provincial: Neighbouring Rights
(iv) Constitutional: The Natural Person and the Crown
This paper is an edited extract from the introduction of my recent book: The Compleat Canadian Copyright Act 1921-2006: Present, Past & Proposed Provisions (Chartrand Sept. 2006). It documents 85 years of the shifting balance of power between creators, users, proprietors, Parliament and foreign interests reflected in the changing provisions of the Act. It is the record of legislative attempts to accommodate new ways, new technologies, to fix the expression of ideas or knowledge into a material matrix thereby creating new subject matter for copyright, e.g., ‘talking’ pictures, radio and television, VCRs, DVDs, WWW, et al and in the process creating streams of royalties to be gained through their exploitation. The provenance of each section of the current Act is traced out from 1921 to June 2006 compiled from 59 statutes or bills receiving at least first reading in the House of Commons. The work therefore also opens the door on to the parliamentary debates, committee hearings and Canadian case law in which members of the dramatis personae play out their roles in the evolving story of legal rights and obligations that is the Act.
Certain terms of
Canadian statutory law are needed to navigate the text. These include:
a) “S.C.” or the Statutes of Canada followed by the year and chapter number, e.g. S.C. 1988, c. 15 which reads Statutes of
b) “R.S.” or the Revised Statutes of Canada followed by
the year and consolidated chapter number, e.g.
R.S. 1985, c. C-42 which reads “Revised Statutes of
c) “Bill” that stands for a
Bill proposing changes to the Act made by the government of the day or by a
private member but which nonetheless did not receive Royal Assent, i.e., it did not become law, e.g., Bill C-60, 2005; and,
d) “s.” or “ss.” or, respectively, section or sections of a statute, e.g., S.C. 1988, c. 65, ss. 61-64 which reads “Statutes of Canada 1988, chapter 65,
sections 61 to 64”.
The Act currently exists in
pieces spread out over many different statutory amendments. There is no single ‘official’ document
presenting all present provisions. This
will occur only with the next Revised
Statutes of Canada traditionally published every fifteen or twenty years
beginning in 1886 and then in 1906, 1927, 1952, 1970 and 1985. Such revisions consolidate amendments and make
non-substantive changes in wording, styling and structure, e.g., the change of “His Majesty’s Dominions” [R.S. 1927, c. C-32,
s. 2(i); R.S. 1952, c. C-55, s. 2(i)]
to “Her Majesty’s Realms and Territories” [R.S. 1970, c. C-30, s. 2; R.S. 1985,
c. C-42, s. 2] then repealed by S.C. 1997, c. 24, s. 1(5) as is likely in the
next Revised Statutes.
In the process names of individual
statutes, chapters and section numbering may also change. A concordance facilitates transition between
the old and new. It is not clear when
the next Revised Statutes of Canada
will appear or what amendments to R.S. 1985, c. C-42 will be included and which
must wait another fifteen or twenty years.
The Canadian Copyright Act has significance
for many facets of Canadian life beyond music downloads and photocopying. I will examine five: the historical, cultural,
economic, legal and political significance of the Act. My conclusion: the Act, and intellectual
property rights (henceforth ‘IPRs’) in general, are too important to be left to
industry and politicians. It defines who
we are as a creative, democratic nation.
The Canadian Copyright Act is an evolving
work product of Parliament striving to fulfill its constitutional
responsibility for copyright. That
responsibility, however, was not fully assumed until 1921, more than fifty
years after Confederation. Until then it
was divided between the Imperial
Copyright Act and sections of other Imperial and Canadian statutes, e.g., the Criminal Code of Canada.
During this time, the Parliaments at
Assumption of full
responsibility with a ‘made-in-Canada’ An
Act to amend and consolidate the Law relating to Copyright, (S.C. 1921, c. 24) brought with it, however, British common law precedents stretching
back long before the historic 1710 Statute
of Queen Anne. This was the first
modern copyright act because for the first time in English history authors were
granted statutory rights to their works.
The word ‘copyright’ itself, however, did not enter the English language
until 1735 (OED, copyright). These
rights, nonetheless, were fully transferable, by contract, to ‘proprietors’, i.e., printers, booksellers or
publishers. The change, in fact, was
less a boon to authors than to proprietors because it meant that copyright was
to have another function. Rather than
simply being the right of a publisher to be protected against piracy, copyright
would henceforth be a concept embracing all the rights that an author might have
in a published work.
It was such
‘proprietors’ who, prior to the Statute
of Queen Anne, enjoyed ‘Stationers’ Copyright’. In 1557, Queen Mary I granted a charter to
what became the Company of Stationers of London. Stationers’ Copyright was based on royal
prerogative or letters patent covering the entire publishing industry as an
estate. The monopoly was assigned to
members as a freehold interest. No
consideration was given to author’s rights.
It was perpetual at the pleasure of the Crown. Stationers’ Copyright and patents of
invention were, significantly, the only Crown monopolies to escape dissolution
under the Statute of Monopolies of
1624 during the reign of James I.
The reason for its
survival was its political usefulness in fostering the political and religious
orthodoxy of the day, no matter who was in power – Anglican, Catholic or
Protestant (Patterson 1993). It was
intended to limit or to censor the domain of public discourse. Nonetheless, all rights granted to the author
and hence to proprietors after 1710 remain subject to the Crown. Illustrative is the following Canadian
example:
7. Exception to immoral works
No literary, scientific or artistic work which is
immoral, licentious, irreligious, or treasonable or seditious, shall be the
legitimate subject of such registration or copyright.
R.S. 1906, c.70, s. 7
Copyright is, in
fact, historically rooted in censorship, pre-publication licensing and grants
of industrial privilege initiated by the Tudor monarchs in response to
introduction of the printing press in 1476 (Chartrand 2000). Its root is therefore not the ‘natural rights’
of the creator associated with the other page of the Canadian statute book: en français – drôit d’auteur, i.e., rights
of the author. The British root is printer’s
copyright intended to propel works into the marketplace by granting rights to
secondary creators like publishers, recording companies and motion picture
studios (Vaver 1987). It is, in effect, trade
regulation of a State-sponsored monopoly.
Its root is not the natural rights of the creator cum the European Civil Code which primarily intends to promote
culture.
In this regard the
first international intellectual property rights convention was the 1883 Paris Convention for the Protection of
Industrial Property covering patents, trademarks and registered industrial
designs. That copyright was not ‘industrial
property’ (Keyes & Brunet 1977, 3) was formalized with the 1886 Berne Convention for the Protection of
Literary and Artistic Works which introduced Civil Code concepts such as
moral rights and the public domain into the English legal lexicon.
There is thus an
inherent tension between two distinct legal traditions within the pages of the Canadian Copyright Act itself. This is evident in Bill C-60, 2005 regarding
moral rights in performances, recordings and communications. While it is proposed that such rights shall not
be assignable as in the Civil Code, they may be waived by contract unlike the
Civil Code. The most succinct expression
of moral rights is that they are “inalienable, unattachable, impresciptible and
unrenounceable” (Andean Community 1993).
Full responsibility
for copyright in 1921 also brought Canadian precedents, especially those
concerning the predatory U.S. Copyright
Act. Article I, Section 8 of the
1788 U.S. Constitution (known as the
Intellectual Property or Copyright Clause) states, in very natural rights
terms:
The Congress shall have Power ... To promote the
Progress of Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries;
Two years later,
however, Congress passed the first U.S.
Copyright Act of 1790 entitled: An
Act for the Encouragement of Learning, by securing the Copies of Maps, Charts
and Books, to the Authors and Proprietors of such Copies, during the Times
therein mentioned. The key change is
the term “Proprietors’. The
While the American Republican
Revolution overturned the ancient regime of subordination by birth it nonetheless
adopted English Common Law and precedent governing business including copyright
(Commons 1924). The French Republican Revolution, on the other
hand, overturned not just the regime but also the old French common law. It was replaced by the Napoleonic Code or what
became the Civil Code. It is a legal
code rooted in ‘natural rights’ as seen at the height of the 18th century
Republican Revolution, e.g., moral
rights of creators.
Both legal traditions are mutagenicly at play in
and out of the Canadian Copyright Act. In 1986, for example,
One critical Civil Code concept not in the present
Act is ‘the public domain’. The term entered
“Anglo-American copyright discourse through the French of the Berne Convention”
in 1886 (M. Rose 2003, 84). The public
domain is where knowledge is at home as a public good, i.e., it is non-excludable
and non-rivalrous in consumption. In the public domain everyone has the
right to know and my use does not reduce the knowledge available to you. Intellectual
property rights make new knowledge rivalrous and excludable by law, not by
nature. It is protected, however, only
for a limited time after which it too enters the public domain.
For that period, however, it is ‘enclosed’
(Boyle 2004). It is fixed in a work that
is the exclusive possession of its creator who determines access and
application. Generally, however, this is
a corporate proprietor, i.e., a legal
rather than a natural person, using an ‘all-rights’ or ‘blanket licence’ granted by the creator and increasingly including a
waiver of moral rights. In other words,
where intellectual property rights privatize knowledge limiting access through
price and other mechanisms, in the public domain knowledge is free to all
without cost or constraint. In this sense there are two knowledge domains
– the public and the private. To paraphrase Nathan Rosenberg about
science (Rosenberg 1994, 143), the
public domain is an immense pool to which small annual increments from the
private domain are made at the frontier. The true significance of the
public domain is diminished, rather than enhanced, by extreme emphasis on the
importance of only the most recent increments to that pool.
In this regard there
has been an observable lack of interest in the Anglosphere legal tradition
about common property such as the public domain over the last three hundred years. Carol Rose concludes questions of private not
public property have been the focus of attention (C. Rose 2004). In
recent decades, however, ecology has exposed the tragedy of the public commons of
the air, water, oceans and biosphere leading, in turn, to new law. The public domain too is a public commons but
one unlike any other. The more it is
used the bigger it grows; your taking does not decrease my share; or, paraphrasing
Isaac Newton’s famous aphorism: “We all stand on the shoulders of giants”.
There may, however, be
a premonition of an Anglosphere concept of the public domain implicit in the
titles of the first U.S. Copyright Act
of 1790 (noted above) and the 1710 Statute
of Queen Anne or more formally, An Act for the
Encouragement of Learning, by Vesting the Copies of Printed Books in the
Authors or Purchasers of such Copies, during the Times therein mentioned. The key word in both is ‘learning’. Copyright is by statutory precedent to be judged
by its contribution to learning.
Anglosphere
copyright and Civil Code author’s rights are both based on the ‘Person’ –
natural or legal; many other traditions are not. The
Unlike
the
The
In
the
In the
In
much of the
IPRs including
copyright are the legal foundation for the industrial organization of the
knowledge-based economy. They constitute
what Harold Innis calls the staple of such an economy. Innis is arguably
the founder of the only indigenous
A knowledge-based
economy is different in a number of ways from the traditional Standard Model of
market economics in which manufactured goods are the staple. First, ideally in a manufacturing economy
a consumer acquires all benefits of a good at market price while producers
recover all costs including the opportunity cost of entrepreneurship. In theory, there are no externalities, e.g., there is no pollution. In such an economy there is, theoretically, no
role for government. In a
knowledge-based economy, however, creation of intellectual property rights by
the State is necessary before a
market can exist, i.e., no
government, no knowledge-based economy.
In the Standard
Model, IPRs are justified by market failure, i.e., when market price does not capture all benefits and all costs
of production, e.g., pollution
costs. These are called external costs
and benefits, i.e., external to
market price. IPRs, in this view, are
created by the State as a protection of, and incentive to, the production of
new knowledge which otherwise could be used freely by others (the so-called
free-rider problem). In return, the
State expects creators to make new knowledge available and that a market will
be created in which such knowledge can be bought and sold. But while the State wishes to encourage
creativity, it does not want to foster harmful market power. Accordingly, it builds in limitations to the
rights granted to creators. Such
limitations embrace both Time and Space.
They are granted, assuming full disclosure of such new knowledge: only
for a fixed period of time, i.e.,
either a specified number of years and/or the life of the creator plus a fixed
number of years; and, only for the fixation of new knowledge in material form, i.e., it is not ideas but rather their
fixation in material form that receives protection.
Eventually, however,
all intellectual property (all knowledge) enters the public domain where it may
be used by anyone without charge or limitation.
Even while IPRs are in force, however, there are exceptions such as
'free use', ‘fair use’ or ‘fair dealing’ under copyright.
Similarly, national statutes and international conventions permit
certain types of research using patented products and processes. And, governments retain authority to waive
all IPRs in “situations of national emergency or other circumstances of extreme
urgency” (WTO/TRIPS 1994, Article 31b), e.g.,
following the anthrax terrorist attacks in 2001 the U.S. government threatened
to revoke Bayer’s pharmaceutical patent on the drug Cipro
(BBC News October 24, 2001).
Second, the average cost curve in a knowledge-based economy
is not the classical ‘U’ shape of manufacturing but rather it is ‘L’
shaped. Suppose that the first unit of
Windows VISTA cost $500 million to develop but the second and all subsequent
units cost a $1.99. This highlights the
economic significance of copyright and IPRs.
Without State-sponsored and enforced IPRs the enormous initial
investment required for many innovations would be unprofitable. Arguably, however, the same holds for the individual
artist/creator. At the extreme, there is Van Gogh, the epitome of the mad starving artist. He cut off his ear and sent it to his girl
friend; spent much of his life in an insane asylum; and, in return, he gave the
world sunflowers and starry nights for only $1.99 at the local dollar
store.
Third, fixing expression in a new matrix, e.g., DVDs, creates a new type of work
in which copyright may subsist. It may
also generate an entirely new ‘techno-economic regime’ involving a web of
related installations and services (David 1990). In this regard, the printing press was the
first engine of mass production. With
Gutenberg’s ‘moveable type’ printing press in 1456 C.E., once a work was
‘fixed’ in type, copies became cheaper and cheaper as the costs of a work and
typesetting were spread over a larger and larger print run – the principle of
mass production. It also gave rise,
through progressive division and specialization of labour, to a network of new
industrial activities and skills like publishing, copy editing, bookstores,
newspapers, print advertising, etc. In this sense, a new matrix acts like
what economist Paul David (1990) calls “a general purpose engine’ or I call a
general purpose tool (Chartrand 2006).
These tend to generate “network externality effects of various kinds, and so make issues of compatibility standardization
important for business strategy and public policy” (David 1990, 356). This is why so much is riding on the current
industrial battle about high definition DVDs, i.e., Sony’s Blu-ray versus Toshiba’s HD-DVD. Like the previous Betamax/VHS
battle which matrix is finally adopted as the ‘standard’ will have a
significant impact on consumers but especially on the competitors themselves.
It is not, however,
just the matrix or medium that generates network effects. The expression or message itself can generate
‘spin-offs’. Consider a literary work, e.g., a short story, which becomes a
play through licence of its copyright. In turn, the play becomes a film which, in
turn, is spun off into posters, toys, T-shirts, a soundtrack and video games. The film and the soundtrack are broadcast on television
and radio. Eventually a book is made
about making the movie, and then a sequel is produced. All flow from the initial work.
Fourth, copyright (and other Anglosphere IPRs) is rooted in
precedent, not principle and reason. The
result is:
the complex body of law, judicial interpretation, and
administrative practice that one has to grapple with in the area of
intellectual property rights has not been created by any rational, consistent,
social welfare-maximizing public agency. (David 1992)
Paul David characterizes the existing Anglosphere
IPR regime as ‘a Panda’s thumb’, i.e.,
“a striking example of evolutionary improvisation yielding an appendage that is
inelegant yet serviceable” (David 1992).
Fifth, another economic implication of the Act concerns
employment in a knowledge-based economy.
Under the existing Act, copyright and moral rights belong to the
employer, not the employee, similarly under Crown copyright. Under the Civil Code, an employee retains
moral rights over his or her work and may even enjoy some ‘neighbouring
rights’.
While the
traditional manufacturing economy boasted life-long employment, the
knowledge-based economy is increasingly characterized by contract work and
self-employment. The pervasive use in
the Anglosphere of blanket or all rights licences
extinguishes all future claims of the creator.
If such trends continue, it can be expected that income distribution for
contract and self-employed knowledge workers will increasing look like that of
self-employed artists and entertainers who are second only to pensioners as an
income class recognized by Revenue Canada (Chartrand 1990). Furthermore, their income distribution is not
a pyramid with a broad base, wide middle and a peak. Rather it is an obelisk with a huge base of
poor ‘starving artists’, a thin column of middle class survivors and a tiny peak
earning enormous sums, e.g., Pavoratti. This
could be the future of the knowledge-based economy - no middle class.
Sixth, another economic implication of the Act and all
State-sponsored IPRs is their predatory rather than defensive use. This includes ‘patent wars’ and ‘copyright
misuse’. In the case of patents, some
corporations spend enormous sums of money on research projects that fail for
one reason or another. Nonetheless,
everything that can be patented is patented.
These patents may be retained or sold to a patent holding company of one
form or another. If a rival or
competitor emerges who subsequently succeeds in making the technology work then
they may be charged with patent infringement.
Whether valid or not the rival faces enormous legal costs or settling
out of court. Both ways, competition is
restrained and innovation inhibited.
Copyright misuse is
a relatively new legal concept that emerged in the
The defense of copyright misuse was raised … because
Disney licensed its movie trailers subject to license terms that prohibit the
licensees from using the movie trailers in a way that is “derogatory to or
critical of the entertainment industry or of” Disney. That is, Disney uses the exclusive rights conferred
upon it by the Copyright Act, not only to obtain a return for its creative
efforts (which is consistent with the purposes of copyright protection), but
also to suppress criticism (which is contrary to the purposes of copyright
protection). (Tech Law Journal Daily E-Mail Alert,
As will be seen below, copyright misuse by repressing
‘free speech’ represents an existential threat to a 21st century information
democracy taking copyright back to its origins as censorship of the public domain.
Seventh, finally and ironically, an alternative
economic model more consonant with the contemporary knowledge-based economy was
proposed just before Adam Smith’s The
Wealth of Nations made manufacturing king of economics in 1776. The alternative was proposed by the
pre-revolutionary French Physiocrats who gave us the term ‘economist’. Behind
the Gallic façade of laissez faire
and laissez passer, there was a deeper
policy implication never realized because of the French Revolution (Samuels
1962, 159). The Physiocrats wanted to
reach below the surface of the marketplace to the legal foundations of
capitalism (Commons 1924). For the
Physiocrats, “the public interest is manifest in the continuing modification or
reconstitution of the bundle of rights that comprise private property at any
given time” (Samuels 1962, 161). By
changing the bundle of rights that is copyright or patents, trademarks and
industrial designs, or by creating new ones, the State creates entrepreneurial opportunities
in a laissez faire, laissez passer knowledge-based economy
(OECD 1996). This legal strategy is a
critical compliment to what the OECD calls the ‘National Innovation System’
(OECD 1997). Three examples will demonstrate
– computer software, copyright collectives and national treatment.
First, until S.C. 1988, c. 15 (1980 in the
Such reconsideration
is also appropriate for another reason. The
distinction between ‘machine readable’ and ‘human readable’ codified knowledge
fuelled the 1970s debate about software copyright. Recognition in 1988 was a break with a long
legal tradition restricting copyright to ‘artistic works’, i.e., works carrying semiotic meaning from one human mind to
another. A computer program, while
codified and fixed in a communications medium, is intended to be decoded by a
machine not by a human mind. It is
intended to manipulate the flow of electrons in a circuit. In turn, such circuits may activate other
machines and/or machine parts, e.g.,
industrial robots in steel mills, auto plants and fabricating industries. Similarly, genomics programming is also codified
and fixed in a communications medium but intended to be decoded by machines and
molecules, not by a human mind. It is
intended to manipulate the chemical bonds of atoms and molecules to analyze or
synthesize biological compounds and living organisms with intended or designed
characteristics. Software – computer and genomic - constitutes a
form of ‘soft-tooled’ rather than ‘codified’ knowledge (Chartrand 2006).
Second, introduction of new rights in S.C. 1988, c. 15
and S.C. 1997 c. 24 was followed by formation of many new collective societies
to receive and distribute royalties to creators/copyright proprietors as well
as to monitor infringement. The result as
revealed in a web survey shows that there are 6 such societies in the
Third, public sector support for the production of
other goods & services such as cars is subject to harmonization under the
rules of the WTO. Intellectual property
rights, however, especially copyright, are subject only to ‘national treatment’. This means
The Canadian Copyright Act is a work in
progress: governments change, technology changes and the Act changes and
evolves. Beginning with S.C. 1988, c. 15,
however, the Government of Canada began a planned three phase process to
modernize the Act. Phase II was
completed with S.C. 1997 c. 24. Arguably
Bill C-60 2005 was a step towards completing Phase III. With the defeat of the last government,
however, the Bill died on the order paper.
It is unclear when and if the new government will re-introduce the Bill
or propose another or simply wait.
In the interim the
existing Act will continue to be tested in the Courts. This exposes another critical facet of the Anglosphere
copyright tradition. It is both
statutory law enacted by a legislature and case law determined by judges. In this regard, the most important judicial
precedent in the development of copyright (and intangible property like ‘good
will’) was a dissenting opinion in the 1769 case of Millar v. Taylor (Commons 1924). In it Justice Yates explained why
ideas are not protected. Drawing on the Institutes of Justinian
(one of the sources of the Civil Code), he observed that ideas are not the
object of property rights because they are like wild animals or ferae
naturae that once set free belong to no one and everyone at the same time, i.e.,
they are in the public domain. It is only their specific expression fixed
in material form – commonly known as a work – that qualifies for protection
(Sedgwick 1879).
Precedents set in
different Anglosphere jurisdictions, e.g.,
Australia, Canada, the U.K., the U.S., etc.,
can and do spill over, from time to time, into the courts and legislatures of
other jurisdictions. Thus genetic
patents in the U.S. emerged from a 1980 Supreme Court decision in Diamond v Chakrabarty
that reinterpreted existing law, i.e., there
was no change in the statute.
Similarly, software patents in the
Another
characteristic of Anglosphere Common Law is use of ‘legal fictions’. Thus a root tension within the Canadian Copyright Act centres on the
Common Law fiction of ‘corporate legal personality’. A
natural person is a living human being; a legal person is a body
corporate. The vast bulk of productive
assets are owned by fictitious legal persons such as corporations, companies, sociétés, Gesellschaften. Such persons are birthed under incorporation
statutes that allow them to engage in a wide variety of profit making and
charitable activities. In the
Anglosphere tradition, however, legal and natural persons increasingly enjoy
the same rights (Nace 2005) while under Civil Code they
enjoy different rights.
It is with respect
to knowledge that this difference is most apparent. Civil Code creator’s rights are justified
because the work of a natural person bears the “imprint of personality” that a
body corporate cannot possess (Geller 1994).
Such rights are intended to reward creative individuals for their
contribution to our collective knowledge, to our culture. Argument about this imprint has fueled
ongoing controversy between the United States and the European Union,
especially France, over extending to American media corporations doing business
in Europe rights restricted by Civil Code to the Natural Person, i.e., imprescriptible rights.
Following John Dewey’s
reasoning (1926) that a ‘corporate legal personality’ is anything the law says
it is, so too is copyright. He also
reasons, however, that when the law looks outside itself for insight, about
questions such as corporate legal personality, the result can be unfortunate
because “the human mind tends toward fusion rather than discrimination, and the
result is confusion” (Dewey 1926, 670).
In copyright, the law looks Janus-like two
ways at once: towards copyright as trade regulation of a State sponsored
monopoly and towards the natural rights of the creator. This is captured in the title of Part I of
the Act: Copyright and Moral Rights in
Works.
The tension between
commerce and culture exists throughout the Anglosphere and to a lesser extent
in Civil Code countries as well. In
effect, there has been confusion between the natural rights of creators and
trade regulation. It is, however, only a
question of degree. Arguably, the
At the other extreme
is
In
So in the emerging
knowledge-based economy, what shall it be?
Commerce or culture? Profit or learning? The natural or the legal
person? The
private or public domain? What
is the appropriate balance? Who decides
and how are questions of growing political significance to a 21st century information
democracy.
The Act has
significance for Canadian political life at four levels: international,
national, provincial and constitutional.
In brief, at the international level it plays a role in maintaining and extending
Canadian cultural sovereignty. Nationally,
it recognizes the distinctive contribution of French Canada to Confederation
while failing to recognize Aboriginal or Native Heritage Rights and ignoring the
growing power and concentration of copyright proprietors, i.e., ‘the media’. At the
provincial level neighbouring rights,
i.e., those created outside the Act, can be tailored to foster the
‘creativity haven’ of the 21st century. Constitutionally,
the Act represents a clash between precedent and principle, specifically
between the legal fiction of ‘the Crown’ and the Natural Person of the 18th
century Republican Revolution. I will
outline each in turn.
(i) International: Pursuit
of ‘Cultural Sovereignty’
The term ‘cultural
sovereignty’ emerged from the French in the 1970s as