The Right of Exclusive Access : Misusing Copyright to Expand the Patent Monopoly

Copyright legislation has been amended in many countries to provide legal protection to access- and use-controlling technology. Canada is considering similar provisions in Bill C-60. This article examines the policy issues that arise when copyright law, in conjunction with anticircumvention technology, is invoked to provide concurrent protection for a patented or patentable device. It discusses the philosophical justification for IP rights protection, including the notion of balancing owner and user interests, and the importance of respecting the different balances on which each intellectual property right lies. The article argues that technology, with its legal protection, can be used to expand the patent monopoly, or even supplant it, effectively eliminating the concept of intellectual property rights' balance. The article identifies and analyses the effects of access- and use-controlling technology on the patent monopoly and, drawing on the experience of other jurisdictions with similar provisions, offers two suggestions to mitigate the risk that the inclusion of anticircumvention provisions in the Copyright Act can be misused to expand the patent monopoly. One recommendation is to change the proposed provisions in Bill C-60 to connect the circumvention of DRM technology with actual copyright infringement and to narrow down the definition of access-controlling technology. The second suggestion is to introduce into Canadian copyright law a statutory cause of action, or defence, similar to the American equitable defence of copyright misuse, which could be invoked to address the improper use of any copyright rights