Introduction

As a result of the March 4, 2004 Supreme Court of Canada decision in CCH Canadian Ltd v Law Society of Upper Canada1 for the first time in Canadian copyright history, the court determined that Canadian law must recognize a "user right" to carry on exceptions generally and fair dealing in particular. Whereas the notion of exceptions before this decision was premised on a narrow interpretation of the scope of the exceptions, the Supreme Court has raised what was a narrow exception to the level of general principle. Thus, it is important in the ongoing project of copyright policy reform to probe the meaning of this ruling since it would affect potential policy work on exceptions, and especially how the notion of fair dealing is conceived and applied.

This study proceeds in six parts. Part II examines the significance of CCH in rooting a user right. At this early juncture, it is useful to step back and revisit pre-CCH cases often seen as user unfriendly and then gaze forward into the post-CCH jurisprudential scene. Having set out the Canadian fair dealing legislative and jurisprudential landscape, the study begins to explore this legal backdrop in other jurisdictions. UK fair dealing and US fair use are respectively examined in Parts III and IV. In discussing US fair use, particular attention is made to the flurry of criticism against it, with specific reference to the educational sector. Part V then compares the three jurisdictions. It is observed that because of CCH, the Canadian common law factors are more flexible than those entrenched in the US. For the UK, certain criteria have emerged from the caselaw consonant to Canada's pre-CCH framework and in many ways there is now a hierarchy of factors with market considerations at the fore. The real differences, however, ultimately lie in the policy preoccupations held by the respective courts, with Canada's top court alone concerned in championing user rights above all other rights.

In the spirit of attaining copyright balance, some conclusions, by way of potential solutions, are advanced in Part VI. The main focus of this fair dealing study is on the applicable legislation and jurisprudence, although as will become apparent the solutions may (and should) also lie outside (and complementary to) the realm of the law and the courts. While doing nothing does not seem to be the appropriate response, legal intervention may not be warranted either. Rather than, or at the very least together with, reforming the law, establishing fair dealing best practices is most promising. The parties directly affected in a specific industry can together develop these guidelines to ultimately aid in clearer and ongoing fairer fair dealing decision-making in the courts. It is here that US initiatives can serve as most fruitful to emulate.

While this study investigates the legislative and jurisprudential landscape of fair dealing, it recognizes that there are other matters such as the role of contract and technology which also affect fair dealing/fair use. As argued elsewhere, the role of contract in copyright law cannot be underestimated.2 Contract law can promote and undermine fair dealing. Contracts can promote and undermine users and creators and any party in the copyright system for that matter. It is thus important to assess how the role of contract is embedded in the Canadian Copyright Act3 ("CCA") and how it is deployed in practice to promote and temper the desired results–presumably the objectives of balance where the interests of creators, users, rights holders and the general public are considered.

Moreover, the relationship between technology and fair dealing/fair use is equally material. Like contract, technology can also undermine and promote the various copyright stakeholder interests. The link between technology and fair dealing/fair use and other exceptions has been specifically examined in the US and the findings are negative.4 If fair dealing is to be preserved, then technologies cannot undermine its functioning. The CCA needs to be mindful of this dynamic. And so, while each of these matters are critical and will be raised throughout this study where relevant, a fuller analysis is left for another time and place. Equally important and beyond the scope of complete analysis are the actual practices of stakeholders as for instance borne out in business models steadily evolving to embrace technology and promote the goals of easy and open access. The software open access movements and the Creative Commons are some models complementing some of the ethics of fair dealing.  Last, because this study is limited to the domestic and comparative aspects of fair dealing, it is at this time untenable to assess the international dimensions of the issue. Other scholars have begun to do so.5 For the immediate future, it does not seem as though CCH would be cause for concern in violating Berne's three-step test for instance. Should the courts apply CCH expansively, this may trigger international scrutiny of the legislation. To date, there have been no such conflicts.

Notes

  • 1 [2004] 1 SCR 339 ("CCH").

  • 2 The critical role of contract law in copyright law, or copyright contract is a recurring preoccupation of mine: G D'Agostino "Canada's Robertson Ruling: Any Practical Significance for Copyright Treatment of Freelance Authors?" [2007] EIPR 66; G D'Agostino "Freelance Authors for Free: Globalisation of Publishing, Convergence of Copyright Contracts and Divergence of Judicial Reasoning" in F Macmillan (ed) New Directions in Copyright (Edward Elgar Cheltenham 2005) 166 and G D'Agostino "Copyright Treatment of Freelance Work in the Digital Era" (2002) 19 Santa Clara Computer and High Technology LJ 37.

  • 3 Copyright Act RSC 1985 c C-42 ("CCA").

  • 4 See text to nn 172-197.

  • 5 D Gervais "The Purpose of Copyright Law in Canada" (2005) UOTLJ 315-356.