ten years later

Next week marks a decade of post-CCH Canadian copyright dialogue in Canada. The decision addressed a number of issues including originality, and the implications of providing technology that might be used towards infringing behaviour. However, the decision has largely become known for its stance on fair dealing. It stood out on the world stage; described at the time by Michael Geist as: “one of the strongest pro-user rights decisions from any high court in the world, showing what it means to do more than pay mere lip service to balance in copyright.” And yet, looking at it now, it seems a little incredulous that a decision to uphold copyright’s structure as a set of limited rights, should garner so much attention.

March 4, 2004 began quietly enough. According to the news reports, the Supreme Court of Canada ruled that a library could make, at the request of a patron, a copy of a work of legal literature (i.e., an individual journal article, edited reasons for a judgement, a selected chapter from a treatise etc.). The library was only engaging in fair dealing. If anything felt odd, it was the implication that we needed the Supreme Court’s sanction for the modest copying that is carried out daily within libraries and among researchers. Perhaps recognizing the peculiarity of this spectacle, Chief Justice Beverley McLachlin, writing for a unanimous court, took pains to remind us that:

Under s. 30.2(1), a library or persons acting under its authority may do anything on behalf of any person that the person may do personally under the fair dealing exceptions to copyright infringement (para. 83).

In her next breath, McLachlin also indicated that this was superfluous to the matter at hand:

I concluded in the main appeal that the Law Society’s dealings with the publishers’ works were fair. Thus, the Law Society need not rely on the library exemption. However, were it necessary, it would be entitled to do so (para. 84).

What surrounded the decision with acclaim from public interest advocates, and loathing from some copyright owner representatives, was the recognition by the court that the system of copyright is inherently about nuance—that copyright does not support a blanket prohibition on all copying.

For most of the twentieth century, fair dealing had existed essentially in name only. In “The Changing Face of Fair Dealing” in ed. Michael Geist, In the Public Interest—the Future of Canadian Copyright Law (2006), Carys Craig writes that fair dealing was “all but redundant in the Canadian courts: rarely raised and cursorily rejected (p.438).” It has been only in the new millennium that the rights of the public began to gain attention. In this regard, CCH Canadian was not the watershed moment; that distinction was earned two years earlier in the Théberge v. Gallery d’Art du Petit Champlain decision by the Supreme Court. Even though the case had nothing to do with fair dealing, Justice Binnie, writing for the majority, decisively placed owners’ rights in service of the vitality of the public domain, and, made particular mention of the role of exceptions:

Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization. This is reflected in the exceptions to copyright infringement … which seek to protect the public domain in traditional ways such as fair dealing … (para. 32).

Binnie’s remarks were later given added thrust in CCH Canadian. Reminding us that fair dealing “was always available,” McLachlin continued with: “Research must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained (para. 49-51)”. And after a multi-factor examination of the copying under scrutiny (building and improving upon the four factors of American fair use) the Court declared fair dealing.

Encouraging as the decision was, it by no means assured anyone of success in the long-term pursuit of balance in copyright law. In a comment upon the case, Teresa Scassa wondered if it was “too little, too late.” The predilection of the world then (as it is now) was to adopt more expansive copyright and the Canadian government of the day showed no signs of taking a different course of action. She wrote:

… [W]hile the Canadian Supreme Court’s new balancing approach offers users greater scope under the existing copyright legislation than they have ever realistically been able to hope for, it is an approach that may be anachronistic, insufficient and ultimately against the grain of current legislative and international directions.  The Court may well be situating itself as the last champion of a much beleaguered underdog – the ordinary user, and in this respect, the effort is welcome (p.97).

Certainly, the domestic reaction against the decision was swift and brutal. I have detailed this period of fair dealing history in “Fair Dealing at a Crossroads” in ed. Michael Geist, From Radical Extremism to Balanced Copyright (2010). Alarmed by the possibility of surrendering the absolutism that had characterized copyright in Canada, rights-holders representatives lost no time in presenting CCH Canadian as nothing less than an assault on creators. The nuance of the decision, its setting, and the emphasis of the Court that every instance of fair dealing is unique and must be examined holistically, could have eased the anxiety felt among Canada’s creative set. However, rights holders sought instead to present the decision in the blackest terms possible and paint fair dealing as unwelcome to Canadian creators. The irony of such pronouncements was that, even with its limited scope, fair dealing was the only measure within the Copyright Act that gave modest support to uses of copyrighted material that are critical to fostering creativity.

Looking back now, Scassa’s concerns may well have been borne out if, at the time, Canada had enjoyed federal governance of our usual variety. But two consecutive minority governments were not conducive to moving forward with copyright change. By the time of the third minority government, public consultation began and amendments were proposed and later accepted in the name of Bill C32/C11. The passage of time was critical; it allowed all parties to gain some perspective concerning the rise of digital technology and world-wide networks. Although, political pressures being what they are, Canada could not avoid the unwelcome addition of protection for technological protection measures (even when a use is non-infringing.) Nevertheless, fair dealing was given a modest nod of approval through the addition of parody, satire and education as legitimate purposes of fair dealing.  As readers likely know, the purpose is only the first step.  The fairness analysis, using later words of our Supreme Court, does the heavy-hitting.

Returning to Scassa’s comment, she drew particular attention to McLachlin’s instruction that the availability of a license is not relevant to a decision of fair dealing. Scassa wrote: “This is an extremely important statement for libraries and universities which have  struggled with the costs of reprography licenses to protect them against copyright infringement actions (p.95).”

Many scholars across Canada saw the decision as the impetus for Canada’s post-secondary institutions to engage with fair dealing; to educate their communities about the importance of the exception and offer guidance of how to best use the exception. Regrettably, this did not happen. When I took stock of fair dealing in 2010, I wrote: “In the years following CCH Canadian, Canadian educational institutions remained disquietly silent on the decision … CCH Canadian has not, to any appreciably degree, taken root in the Canadian university landscape (p.100-101).” Fortunately, Canadian educational institutions are showing more engagement now. (Lisa di Valentino offers some data upon this subject; see here.) Further reassurance came from the Supreme Court of Canada in 2012 concerning fair dealing’s legitimacy and application within K-12 schools (see Education v. Access in Notable Supreme Court Decisions). It must be emphasized that the decision of 2012 was based upon the earlier language of fair dealing, meaning before the inclusion of “education” as an allowable purpose within the law.

The impetus for this blog entry, though largely to indulge in reflection, is also to take the opportunity to identify what, if anything, is the legacy of CCH Canadian. With respect to procedure, it set a new standard for examination of fair dealing; effectively, all roads now begin with a multi-factor enquiry, with no particular factor taking precedence over any other. Policy-wise, the “long-term interests of society as a whole” cannot now be easily set aside. Both elements are valuable and contribute to stability for creators and users alike. But perhaps a legacy less visible is an affirmation through what did not happen. The complaints following the decision included dire warnings that the conduct of the Supreme Court of Canada was not in compliance with international norms, namely the three-step test devised through the Berne Convention, with later variations adopted in the TRIPs agreement and the WIPO Internet Treaties. But the independent action of our Supreme Court to operate in Canada’s best interests has not met with any challenge outside of Canada. The affirmation that international cooperation does not preclude independence on matters of domestic exceptions is something to celebrate.