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?

An obvious question at this late stage is to ask whether Canada's fair dealing is ill? While perhaps not ill, fair dealing in Canada may have the common cold or, may have been ill and is now in convalescence. So while surgery may not be necessary some attention may be due. Potential remedies become apparent and (in the spirit of CCH) there may be others that are worth considering, not noted below.

(a) Do nothing?

Doing nothing would involve waiting to see other cases apply CCH and industry and the Canadian general public muddling about trying to find their own way through allowable uses. Sanctioning this copyright convalescence does not seem to be an appropriate response. Indeed, legislative initiatives for other copyright matters are presently under serious consideration (eg technological protection measures which may affect fair dealing). Arguably, these initiatives will make copyright more expansionist than it already is. Further, there remains a high degree of uncertainty in the varying copyright sectors, such as the educational sector. In the US, the uncertainty in the educational fair use has very recently led to the Copyright Clearance Center offering blanket licences for academic institutions.¹ However, there are strong arguments to suggest that this may not be the way forward.²

(b) Legislate CCH factors?

It has been suggested that government intervene and legislate the CCH factors. It is not clear how this would be done since the court was clear that there are more or less six. More importantly, why would this be done? What Canada now has is a flexible framework to evaluate fair dealing on a case by case basis based on the ethos that users have rights. This seems fairly clear and will be applied and adapted to future cases, in the common law way. The fair dealing enumerated purposes can be interpreted in the same fashion. CCH has set a strong precedent and unless Parliament disagrees with any of its pronouncements it seems inopportune to intervene at this time. Legislating CCH may invite even more confusion.

(c) Cherry-pick other laws?

Some commentators have championed that Canada adopt US fair use. This would entail "cherry-picking" from the US cadre of copyright laws and taking from it its fair use provision. There are problems with this approach. First, as noted from eminent US studies, fair use is "ill" and not the panacea approach that many, perhaps in Canada, proclaim. Because fair use is ill, it has by necessity engendered many fix-it approaches, some by the courts themselves attempting to impose bright-lines (eg presumptions on commercial uses) and by industry players attempting to institute best practices. Second, cherry-picking a law, likely also means taking from its jurisprudence (and neglecting other constitutive factors, such as a Constitution). Would Canadian courts apply US fair use cases? Would this application ignore the fact that property is not constitutionally entrenched in Canada? Singapore has cherry-picked US fair use, however its courts are reluctant to consider US fair use cases causing much disorder. This approach would cause more perplexity than currently exists. One must be very careful when importing legal devices from other jurisdictions.

In this context, it is also useful to consider whether fair dealing necessitates clarification to encompass important (and new) uses. In the UK, Gowers recommended that the government should enact a new copyright exception for parody. Before CCH many scholars posited that parodies would be infringing in Canada. Post CCH's liberal interpretation of the enumerated grounds, it could be argued that "criticism" could now encompass parody. Michelin no longer seems good law. Indeed, parody in the US is not an automatic. Parody still requires analysis of each of the four factors as well as some use of the target to be fair.³ This can now also be the case in Canada and would likely not require any legislative intervention.

Similarly, time-shifting that comports with fair dealing criteria could now be allowed in Canada, as it has long been in the US.  In the UK, Gowers is again recommending a copyright exception but for format-shifting. With respect to Crown copyright, CCH clarifies that the copying of judicial decisions is permissible and it is likely that other government works used in a similar fashion would also be.⁴ Still, in Canada because of Crown copyright more work is subject to protection, which is not the case in the US but very much the reality in the UK and there are no plans in that country to address this. This issue may require more consideration.

In the ambit of the educational sector, while questionable as to whether specific provisions, even amending fair dealing (such as adding 'educational uses' as an enumerated ground), are useful or even necessary, it does seem apparent that clarification (and not necessarily of the legal type) is critical across the various sectors. One disadvantage of introducing a new law is that it may take time before the quick fix that is sought is achieved and may never be achieved. New practices will develop to likely test the limits of the new law through more court cases, thereby inviting access to justice issues for the more disadvantaged parties. And so, if clarity is the goal it is unclear that it can be attained in the immediate future in this way.

(d) Fair dealing best practices?

Rather than (or at least complimentary to) reforming the law, fair dealing best practices are most promising. The parties directly affected in a specific industry can together develop these guidelines which can ultimately aid in fair dealing decision-making in the courts. There have already been successful guidelines or best practices generated in the US where stakeholders with apparent disparate interests in the documentary film-making sector have devised fair use best practices. The interest is also apparent internationally and locally, though from a common set of stakeholder interests (eg within universities and libraries in both Canada and the US). In Canada, most educational institutions have devised copyright policies to deal with the use of copyrighted materials by its patrons. The Great Library of Toronto continues to have one.⁵ Osgoode Hall Law School and York University have developed a policy.⁶ Concordia University has a policy (which appends the Copyright Act) and has also struck working groups to study these issues.⁷ Indeed, libraries continue to play an important role in the negotiation, implementation, and managing of licences. Staff are asked to regularly enforce and interpret copyright issues for compliance.⁸ These are promising starts, but more concerted industry efforts as spearheaded by the US documentary film-makers can and should be emulated.

More parties with conflicting interests within a set sector need to come together. As noted, this can clarify fair dealing uses for all from the creators, users, right holders to the courts, who can then rely on these standards as "soft law" when interpreting fair dealing cases. These initiatives can and should be encouraged to flourish and will at worst, help foster communication and dialogue among different parties. But the benefits can be far more reaching and consequential to future fair dealing (and general) copyright practices. CCH favours parties that abide by their institutional access policies, their case could be more persuasive if such policies were consistent across their industry. Such context specific guidelines should be developed to ensure that all parties are compliant with copyright and in healthy agreement.

(e) Clarify Copyright Act? Clarify policy objectives?

Just as one cannot cherry-pick laws from other countries, it is difficult to cherry-pick problems and solve problems within the Canadian copyright system. Fair dealing cannot be addressed in a vacuum. One must revisit the entire CCA and study what its objectives are, where the balance is being struck. Are right holders the so-called winning parties? Whose interests is copyright law meant to serve?

As noted in various parts of this study, the question remains where is the author/creator? CCH does not appear to account for her. The Copyright Board has also flagged this oversight. In the current Canadian judiciary, public and academic copyright climate, creators' "rights", if one can still use the two words together, le droit d'auteur, seems to be a term of the past or one romanticized and stuck within the civilian tradition and vanishing from the Canadian common law tradition.⁹ Creators remain subject to industry power imbalances which are facilitated by the CCA (allowing freedom of contract and in practice favouring right holders) and facilitated by the courts (undermining creators, but championing another stakeholder previously ill-addressed, the users). Author-centric provisions may thus be necessary (accounting for the role of contract and moral rights) to balance liberalized fair dealing and potential future exceptions and right holder centric existing provisions. In this context, as an example of eschewing a fragmented fix-it approach, addressing the issue of the various types of damages available and the requisite levels of proof is also an important matter and needs consideration in light of the different types of infringement and infringers.

And when all is said and done, if copyright balance is found, the next more important question is whether the CCA is clear enough to communicate this balance. Are the CCA's objectives embraced by the practices of stakeholders, the courts and so on? One hindrance may be the lack of clarity in the CCA. Simplifying and clarifying the CCA was flagged as a long term priority in the Section 92 Report and should not to be forgotten in the short term.

Notes

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