Fair dealing is a statutory exception to copyright infringement, and is also referred to as a user's right (as opposed to an owner's right). According to the Supreme Court of Canada, it is more than a simple defence; it is an integral part of the Copyright Act of Canada, providing balance between the rights of owners and users. To qualify under the fair dealing exception, the dealing must be for a purpose enumerated in sections 29, 29.1 or 29.2 of the Copyright Act of Canada (research, private study, education, parody, satire, criticism or review and news reporting), and the dealing must be considered fair as per the criteria established by the Supreme Court of Canada.
Historical development In English law, copyright was first created by the Statute of Anne of 1709. Initially, there was no provision for unauthorized copying of copyrighted works. The intent was to give copyright holders a complete monopolistic control over the reproduction of their works. However, the courts were almost immediately flooded by lawsuits by publishers unhappy with negative book reviews that included even a single quote of a work and the courts recognized that the statutes were untenable. The common law doctrine of fair abridgment was created in Gyles v Wilcox, which eventually evolved and prompted the doctrine of fair dealing to permit the unauthorized copying of copyrighted works in certain circumstances. The ability to copy copyrighted works in an unauthorized manner is essential. As Justice Story explained in the US case of Emerson v. Davies:
The Copyright Act of Canada was first passed in 1921. Substantial amendments occurred in 1988 and 1997. Fair dealing was first introduced in the 1921 Act, duplicating section 2(1)(i) of the U.K. Copyright Act 1911. Since then, fair dealing has been amended by statute three times. First, by the North American Free Trade Agreement Implementation Act, 1993, s. 64(1), and second by An Act to Amend the Copyright Act, 1997, s. 18. Most recently the Copyright Modernization Act, 2012 added the fair dealing purposes of education, parody and satire to a list that already included research, private study, criticism, review, and news reporting. In CCH Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada established that "'research' must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained". 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.
Before it is even necessary to consider fair dealing, a would-be plaintiff has the burden of establishing an alleged infringement. After the plaintiff has established the existence of copyright infringement, the burden of proof then rests upon the defendant to establish the proper application of fair dealing. While the burden remains upon the defendant,CCH Canadian Ltd. v. Law Society of Upper Canada, 1 S.C.R. 339 at paras 48-50. 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:
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.C. Craig, "The Changing Face of Fair Dealing in Canadian Copyright Law: A Proposal for Legislative Reform," c.15 in Geist, In the Public Interest: The Future of Canadian Copyright Law (Toronto: Irwin Law, 2005) 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.
2012 Supreme Court decisions The Supreme Court of Canada issued decisions in five cases on copyright in 2012, two of which directly relate to fair dealing: Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) (educational use exception to fair dealing) and SOCAN v. Bell Canada et al. (previewing of music and whether that activity constitutes ‘fair dealing’ within the scope of the research exception). The Centre for Innovation Law and Policy of the Faculty of Law, University of Toronto, and the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic of the Faculty of Law, University of Ottawa, were among the interveners. These decisions were issued well after the introduction of the Copyright Modernization Act, 2012, in the House of Commons of Canada in September 2011, suggesting that the Supreme Court of Canada would have been aware of the upcoming changes to the Copyright Act at the time.
Elements Sections 29, 29.1 or 29.2 of the Copyright Act of Canada create the fair dealing exception to copyright:
To qualify under the fair dealing exception, the dealing must be for a listed purpose and the dealing must be fair.CCH Canadian Ltd. v. Law Society of Upper Canada 1 S.C.R. 339, at paragraphs 50
Purpose Sections 29, 29.1 or 29.2 of the Copyright Act identify the permissible purposes. Prior to CCH Canadian Ltd. v. Law Society of Upper Canada, 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),Compagnie Générale des Établissements Michelin-Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), 2 FC 306 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. Following CCH, it is no longer certain whether the purposes listed are exhaustive as they are to be broadly interpreted.CCH Canadian Ltd. v. Law Society of Upper Canada 1 S.C.R. 339, at paragraphs 48 and 54 However, see the case of Canwest Mediaworks Publications Inc. v. Horizon Publications Ltd.Canwest Mediaworks Publications Inc. v. Horizon Publications Ltd., et al. 2008 BCSC 1609 which continued to apply the restrictive approach to permissible purposes.
Amendments to the Copyright Act, in force as of November 2012, have included additional specific enumerated purposes (education, satire and parody). As the Supreme Court of Canada stated, fair dealing "must not be interpreted restrictively".CCH Canadian Ltd. v. Law Society of Upper Canada 1 S.C.R. 339, at paragraphs 48 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", Canadian courts have found that all fair dealing purposes should be given the same large and liberal interpretation.
Dealings for mixed purposes are permissible, provided the alleged purpose relied upon to substantiate the fair dealing is not a disguise for an alternate purpose. This will be measured objectively.CCH Canadian Ltd. v. Law Society of Upper Canada 1 S.C.R. 339, at paragraph 54Pro Sieben Media v Carlton Television 1 WLR 605SOCAN v. Bell Canada et al. 2010 FCA 123 at paragraph 22
One can deal for either their own purposes or for those of someone else, or they may facilitate same. In either case, fair dealing will be available if all other elements are made out.CCH Canadian Ltd. v. Law Society of Upper Canada 1 S.C.R. 339, at paragraphs 62-63
It is the user's purpose that is relevant at this first stage of the analysis, although the copier's purpose can be considered at the secondary stage, during the fairness assessment.Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 at para 22
In the case of dealing for the purpose of criticism, review or news reporting, it is necessary to attribute to the source. See sections 29.1 and 29.2 of the Copyright Act, above.
Research Research involves investigating or closely studying a subject.British Columbia (A.G.) v Messier (1984), 8 D.L.R. (4th) 306 at 309-10 In CCH, it was held that the reading of legal texts and judgments for the purpose of advising clients constituted research.CCH Canadian Ltd. v. Law Society of Upper Canada 1 S.C.R. 339, at paragraph 51 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.
Private study Private study involves applying oneself to acquire knowledge or learning, or examining or analyzing a subject. 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.
Criticism or review Criticism and review involve analyzing and judging merit or quality. The dealing may even be defamatory while remaining a fair dealing.Compagnie Générale des Établissements Michelin-Michelin & Cie v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) 2 FC 306 The key is that fairness relates to the extent, rather than the content, of the copying. With respect to criticism, greater emphasis will be placed upon the transformative nature of the copy.
News reporting News reporting includes any medium such as newspaper, audio, or video. Investigative journalism qualifies.Fraser v Evans 1 Q.B. 349
Fairness of the dealing Fairness is not defined in the Copyright Act. It is a question of fact.
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. These were identified in CCH as follows:
1. Purpose of the dealing Dealing for commercial purposes may be fair.CCH Canadian Ltd. v. Law Society of Upper Canada 1 S.C.R. 339 at paragraph 52 However, "some dealings, even if for an allowable purpose, may be more or less fair than others; research done for commercial purposes may not be as fair as research done for charitable purposes."CCH Canadian Ltd. v. Law Society of Upper Canada 1 S.C.R. 339 at paragraph 54
In Access Copyright, it was observed in obiter that fair dealing is a user's right but that the copier's purpose is also relevant at the fairness stage.Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 at para 22. Where the purpose is not symbiotic with that of the user, the copier cannot "camouflage their own distinct purpose by purporting to conflate it with the research or study purposes of the ultimate user."Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 at para 21.
2. Character of the dealing