The story of CCH Canadian began in connection to a dispute between the Law Society of Upper Canada, and a number of legal publishers including CCH Canadian Ltd., Canada Law Book Inc, and Thomson Canada Ltd. This case addressed the issues of originality, authorization, and fair dealing. This resource page focuses on the issue of fair dealing.
Briefly, the publishers took issue with a service provided by the society’s library where, by request, library staff would prepare copies of published legal materials for distribution via print or facsimile. The publishers saw this as infringement; the Law Society argued it was fair dealing.
Following a systematic evaluation of the situation together with the nuances of fair dealing, the Court rendered a unanimous decision: The library’s actions fell within the ambit of fair dealing. In arriving at their decision, the Court made some comments upon the system of copyright as a whole, and fair dealing’s role within that system:
The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively. … As an integral part of the scheme of copyright law, the s. 29 fair dealing exception is always available. [Para.48-49]
Research must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained. … research is not limited to non-commercial or private contexts. [Para.51]
The availability of a licence is not relevant to deciding whether a dealing has been fair. As discussed, fair dealing is an integral part of the scheme of copyright law in Canada. Any act falling within the fair dealing exception will not infringe copyright. If a copyright owner were allowed to license people to use its work and then point to a person’s decision not to obtain a licence as proof that his or her dealings were not fair, this would extend the scope of the owner’s monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act’s balance between owner’s rights and user’s interests. [Para.70]
Noting that it was impossible to define fair dealing, the Supreme Court reiterated a framework presented by a lower court in 2002. To make a determination of fair dealing, several factors must be examined:
1. The Purpose of the Dealing: Establishing the validity of purpose is quite straightforward. Canadian law is described as a closed set of purposes: private study, research, criticism, review, and news reporting.
2. The Character of the Dealing: How is the work dealt with? A single copy of a work, for an allowable purpose is likely to be fair, whereas if multiple copies are widely distributed, that requires closer examination.
3. The Amount of the Dealing: If the amount is considered less than substantial, no further analysis needs to be done. Where the copying is beyond substantial, fair dealing is contingent upon the purpose. For instance, research and private study may well necessitate the copying of an entire academic article. Whereas for the purpose of criticism, it is unlikely that one needs to include a full copy of a literary work.
4. Alternatives to the Dealing: If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered. Or if the source of the copyrighted material enjoys a monopoly on such material, that will affect a decision as well.
5. The Nature of the Work: Is there a public interest to be gained in wider dissemination of the original work? Such a concern must also bear in mind that the public interest is also served by ensuring adequate returns to creators for their intellectual undertakings.
6. The Effect of the Dealing on the Work: This speaks to the likelihood of affecting the market of the original. Will utilization of the copyrighted material result in unfair competition?
As the justices were correlating the law, this framework, and the facts of the case, they raised a question of the interaction of the library as an institution, with the exception of fair dealing. They asked whether it was essential for the library to ensure that every patron engages with copyrighted material in a manner consistent with fair dealing, or was it sufficient that the general practices of the library observed fair dealing. They opted for the latter; the Access Policy of the Library played a critical part of their assessment.
Access Policy: As to the amount of copying, discretion must be used. … Ordinarily, requests for a copy of one case, one article or one statutory reference will be satisfied as a matter of routine. Requests for substantial copying from secondary sources (e.g. in excess of 5% of the volume or more than two citations from one volume) will be referred to the Reference Librarian and may ultimately be refused. This service is provided on a not for profit basis. [Paragraph 61]
As is evident, this is a very modest, and well-thought out policy on the part of the Great Library. Academic institutions would do well to establish their own good practices via following the framework provided. A position shared by the Canadian Association of University Teachers; in December 2008 they published an excellent guidance on the merits of the CCH Canadian decision and its applicability to academic institutions.
But, the framework was preceded by a caveat; “It may be relevant to consider the custom or practice in a particular trade or industry to determine whether or not the character of the dealing is fair,” [Para.55].
Apart from the broader constituency of Canadians as a whole, the academic community is the largest stakeholder in Canada which benefits by fair dealing. Students, teachers, researchers, and administrators all explicitly (or implicitly) rely upon fair dealing. But, fair dealing’s legitimacy within academia rests upon academic engagement.
Update May 2011: The Canadian Association of University Teachers has prepared a comprehensive guide to copyright and fair dealing. With clarity, this guide addresses both aspects of the law as applicable to post-secondary settings. It will be helpful to teachers, administrators, librarians and students – in short, the academic community as a whole.