Most recently the Copyright Modernization Act, 2012 added the fair dealing purposes of education, parody and satire[3] to a list that already included research, private study, criticism, review, and news reporting.
[6] Later Canadian court decisions have made very clear that this 'large and liberal interpretation' must be applied to all fair dealing purposes, and not only to research.
While the burden remains upon the defendant,[8] fair dealing is considered a "user's right" rather than simply a defence, and should be interpreted liberally to accommodate freedom of expression as guaranteed by the Canadian Charter of Rights and Freedoms: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.
In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively.
"[9] Professor Carys Craig has commented that a liberal approach "acknowledges the collaborative and interactive nature of cultural creativity, recognizing that copyright-protected works can be copied, transformed, and shared in ways that actually further" the purpose of copyright.
[10] The Supreme Court, in Théberge v. Galerie d'Art du Petit Champlain inc., emphasized the importance of balancing "the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator."
The fair dealing exception attempts to accomplish this balancing exercise by permitting unauthorized copying of works where such activities legitimately pursue free expression or further the objectives of copyright in promoting creativity and progress, while obtaining a just reward for copyright owners.
Prior to CCH Canadian Ltd. v. Law Society of Upper Canada,[5] the list of purposes was considered to be exhaustive.
In the case of Compagnie Générale des Établissements Michelin-Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada),[19] the Federal Court of Canada rejected the defendant's assertion that utilizing the copyright of the plaintiff on a pamphlet criticising the labour practices of the plaintiff in a labour dispute could qualify as fair dealing, because the infringement was a parody and not listed as a permissible purpose.
Amendments to the Copyright Act, in force as of November 2012, have included additional specific enumerated purposes (education, satire and parody).
[23] Following the Supreme Court of Canada precedent set in CCH, which stated that "'research' must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained",[6] Canadian courts have found that all fair dealing purposes should be given the same large and liberal interpretation.
[29] In CCH, it was held that the reading of legal texts and judgments for the purpose of advising clients constituted research.
[6] More recently, it was held that 30 second preview clips of music streamed to potential customers for their evaluation in determining whether to purchase the song, constitutes research.
[26] Private study involves applying oneself to acquire knowledge or learning, or examining or analyzing a subject.
[29] In Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), the Supreme Court of Canada found that a teacher or copier's work to assist a student in their study, including instruction determined and directed by the teacher, is included in the concept of private study.
), at p. 1027: A substantial part of a work can be used under fair dealing if it is for an allowable purpose (private study, research, criticism, review, newspaper summary, parody, satire, or education) and if the Supreme Court of Canada's six non-exhaustive factors test for fair dealing are met.
"[36] The character of the dealing relates to the manner in which the work was dealt with: for instance, multiple copies that are widely distributed can be unfair.
"[41] The Board also notes that "In Alberta, the Supreme Court repeated the assertion from CCH that the allowable fair-dealing purposes must be given a 'large and liberal interpretation.'
In Governments, the Board, after considering relevant legislation and case-law, concluded that ‘all of the purposes enumerated in sections 29–29.2 of the Act must receive a large and liberal interpretation.'
[33]D’Agostino comments that in CCH, the Supreme Court "curiously came to a different conclusion about its effect: if a work is unpublished, it weighs in favour of fair dealing.
"[46] However, commercial considerations are not conclusive,[47] and a plaintiff must bring evidence of any detrimental impact upon the market for its work if it wishes to have it considered.
[48] The application of the CCH analysis requires an understanding of copyright law, and many users have sought to simplify this process through the adoption of guidelines quantifying what amounts of a work may be acceptable.
Holding that the lower courts' analysis had been tainted by the error of exclusively focusing on an institutional perspective, without considering the interests of the students' using the guidelines.
For example, Blu-ray discs employ the Advanced Access Copy System (AACS), which has been successfully attacked on numerous occasions.
Furthermore, in the case of Columbia Pictures Industries, Inc v Gaudreault[59] the Federal Court of Appeal held that such circumvention of technological locks does not constitute copyright infringement.
While s. 47 empowered the Governor in Council to make regulations concerning the suspension of prohibition of circumvention of technological locks if same is having an adverse effect on fair dealing, it is uncertain to what extent such provision will be utilized.
It is created by sections 29 and 30 of the Copyright, Designs and Patents Act 1988: It requires the dealing to be for one of three purposes: non-commercial research or private study, criticism or review, and reporting of news events.
It has been repeatedly recognized in the US despite not being listed in the Copyright Act of 1976: Leibovitz v Paramount Pictures Corp, Campbell v Acuff-Rose Music Inc., and in Suntrust v Houghton Mifflin.
Absent clearer guidelines, and to better anticipate how a fair dealing—fair use case might be resolved it is useful to understand what weight each court places on certain factors.
In this light, it helps to compare the CCH factors to those considered in the United States"[65] While the commercial nature of the infringing copy is explicitly mentioned and is a significant factor in determining fairness in the US codification, post-CCH it is a less important consideration in Canadian fair dealing.