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World's Fair Use Day: Much Work Left in Canada

Tuesday January 12, 2010
Today Public Knowledge is sponsoring World's Fair Use Day, described as a day to celebrate the doctrine of fair use and the benefits it brings to creators, innovators, and consumers.  As many readers will know, Canada does not have a fair use provision but rather one called fair dealing.  Given the focus on fair use, it is worth considering both the breadth of fair dealing in Canada as well as its limits.  For those supportive of fair dealing, the good news is that the Supreme Court of Canada has ruled that it is a user right.  In CCH Canadian v. Law Society of Upper Canada, a unanimous court ruled:

Before reviewing the scope of the fair dealing exception under the Copyright Act, it is important to clarify some general considerations about exceptions to copyright infringement.  Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright.  The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right.  In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively. 

Treating fair dealing as a user right was a crucially important milestone that breathed new relevance into the provision.  However, fair dealing only applies to a limited list of categories, namely research, private study, news reporting, criticism, and review.  While this list can be interpreted broadly (ie. the Copyright Board treated song samples as consumer research), there are still many common activities that are not strictly permitted under Canadian copyright law:

  • For creators, this means no protection for parody or satire.
  • For educators, this means no protection for teaching.
  • For innovators, it means no protection for many innovative business models and new technologies.
  • For archivers, it means limited protection for digitization.
  • For consumers, it means no protection for recording television shows, backing up a DVD, format shifting from a DVD to video player, or transferring music from a CD to an iPod.

These limits should not be underestimated as they unquestionably have a stagnating effect on innovation, a chilling impact on creators, and create uncertainty for consumers, students, and businesses.  So as we celebrate the breadth of fair use (dealing), let's not forget that reform is needed to ensure that the benefits of a balanced fair dealing provision accrue to all.

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