While Canada and the UK appear to have a more rigid "fair dealing" framework, and the US a more flexible structure, the results of what has been generally considered fair dealing/fair use have been on the most part similar. 1 David Vaver argues that even before CCH, Canadian courts applied similar criteria, the only difference was that fair use may have applied to any situation, not merely one enumerated.2 Today, unlike the UK, Canada's enumerated grounds are no longer rigid. CCH has expanded Canada's purposes since these should not be given restrictive interpretation. With respect to the criteria, while the US has a statutorily entrenched four-factor approach (but with some other factors that have been considered, eg monopolistic practices, industry custom) CCH has considered six factors with these more or less serving as a future guiding framework. It is expected that other unnamed factors may be considered in future cases. In other words, the Canadian factors can now be seen as more flexible than those in the US. For the UK, criteria has emerged from the caselaw consonant to Canada's pre-CCH framework, and in many ways there is now a hierarchy.
1 Hierarchy of Factors, Not Number of Factors
The jurisdictional differences are apparent in the type of factors given more weight, and not entirely in the number of factors named. Or put differently, examining the hierarchy of factors, as existent in the UK, reveals the courts' approach. A useful exercise is to revisit the CCH factors compared to those considered in the US and UK.
While the character, amount, effect and alternatives of the dealing (CCH factors 2, 3, 4, 6) are similar in each jurisdiction, the purpose and nature of the work (CCH factors 1 and 5) contain some differences.
(c) Purpose (and commercial nature of the dealing)
The purpose of the dealing (and its commercial nature) is the factor that seems to be most undermined in CCH, yet most pronounced in the UK (as being on the top of the hierarchy, indeed commercial is only allowed in review and criticism) and one of four significant factors in the US.
(b) Nature of the Work
Each jurisdiction considers this factor, except that CCH has now curiously pronounced the opposite holding: if a work is unpublished it weighs in favour of fair dealing. In the UK and the US, if a work is unpublished it weighs against fair dealing. This interpretation reveals in particular the court's penchant to favour users.
The role of other factors that were considered pre-CCH in Canada, and are currently key factors in the US and UK, is questionable. For instance, the role of bad faith was not present in CCH, arguably as there was none. Still this was not highlighted expressly as a potential factor. This silence does not mean that it cannot feature in future cases – as the factors were more or less six.
2 Other Factors
The real differences lie in the policy preoccupations held by the respective courts. In Canada, it is clear that the shift is one championing the rights of users to "balance" copyright. Though as noted, it is not at all clear where the creators fit in this schema, and further, creators are repeatedly conflated with right holders. This could not be further from the realities of copyright practices. Perhaps in the UK since commercial exploitation is at the fore of judicial concern one can argue that right holder interests are paramount. In the US, the pendulum swings back and forth among the various stakeholders. At bottom, it is difficult to regulate these policy preoccupations with certainty. The most effective regulator may be the public climate (as has been the case in Canada in advancing user rights) and corresponding best practices that need to be articulated.
1 Eg fair dealing/fair use was used exonerate newspapers for using third party photographs to illustrate a news story: Allen (n 33) and Nunez (n 163) but course-book compilers have been liable for reproducing journal articles and book chapters: Boudreau (n 33); Princeton University Press v Michigan Document Services 99 F3d 1381 (6th Cir 1996).
2 Vaver (n 6) 150.