Fair Dealing After CCH

I Introduction
II Fair Dealing in Canada
- 1 Legislative Context ;
- 2 Analyzing CCH ;
  - (a) CCH Canadian Ltd v Law Society of Upper Canada
    - (1) Purpose (and commercial nature) of the dealing
    - (2) The character of the dealing
    - (3) The amount of the dealing
    - (4) Alternatives to the dealing
    - (5) Nature of the work
    - (6) Effect of the dealing of the work
  - (b) CCH Observations: User-centric approach
    - (1) Defence to User right
    - (2) Expanded purposes
    - (3) Expanded works
    - (4) Exceptions and fair dealing
    - (5) Constructing fair dealing
    - (6) Cautionary note on CCH user-centric policy
- 3 State of Judicial Play before CCH
  - (a) Restrictive Interpretation
  - (b) Liberal Interpretation
  - (c) Motive
  - (d) Policy
- 4 Post CCH: Have Courts post-CCH Taken its Lead?
  - (a) Copyright Board Decisions
  - (b) Note on the Educational Context
III Fair dealing in the UK
- 1 What have Courts said on the Enumerated Purposes?
  - (a) Research or Private Study
  - (b) Criticism or Review
  - (c) Current Events Reporting
- 2 The Dealing must be Fair
- 3 Hierarchy of Factors
IV Fair Use in the US
- 1 US Legislation
  - (a) Four Fair Use Factors
    - (1) The purpose and character of the use
    - (2) The nature of the copyrighted work
    - (3) The amount and substantiality of the portion used
    - (4) The effect of the use upon the potential market
  - (b) "Other" Fair Use Factors
    - (1) Monopolistic and competitive practices
    - (2) Industry practices and institutional
- 2 Fair Use is "Ill"
  - (a) Limits of TEACH Act
  - (b) Reasons for Optimism: Best Practices
V Comparative Assessment
- 1 Hierarchy of Factors, not Number of Factors
  - (a) Purpose (and commercial nature of the dealing)
  - (b) Nature of the Work
- 2 Other Factors
VI Conclusions
- (a) Do nothing?
- (b) Legislate CCH factors?
- (c) Cherry-pick other laws?
- (d) Fair dealing best practices?
- (e) Clarify Copyright Act? Clarify policy objectives?

Report prepared by Giuseppina D'Agostino

Osgoode Hall Law School, June 2007
E-mail: gdagostino@osgoode.yorku.ca

Note

This study was funded by the Department of Canadian Heritage. It does not represent the policies or the views of the Department of Canadian Heritage or of the Government of Canada.

An updated version of the study conducted by Professor D'Agostino in 2008, entitled: "Healing Fair Dealing? A comparative copyright analysis of Canadian fair dealing to UK fair dealing and US fair use", is available on the McGill Law Journal Website.

The author welcomes comments or questions at gdagostino@osgoode.yorku.ca.

PDF: CH44-128/2007E-PDF
ISBN 978-0-662-46883-7

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Fair Dealing After CCH

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