Meera Nair

Fair Dealing, at the start

The scope of fair dealing in contemporary Canadian law has not changed too much since its inception. Fair dealing entered Canada via The Copyright Act, 1921. Styled after the United Kingdom’s Copyright Act, 1911, “any fair dealing with any work for the purposes of private study, research, criticism, review, or newspaper summary,” was not an act of infringement. Then, as now, fair dealing was not defined. A situation which was deftly handled by a Canadian court at the first adjudication of fair dealing in Zamacois v. Douville (1943).

At issue was a 1940 republication of an essay with a separate commentary printed at the same time. Justice Angers carefully examined a number of details: questions of the Berne Convention were involved, the nature of competition, and the prevailing practices within the newspaper industry. He went so far as to examine what literary criticism meant in the French cultural tradition as compared to the English tradition, given that the object in question was the work of a French scholar, reprinted in a Quebec newspaper. Fair dealing’s judicial entry in Canada began with the recognition that each dealing must be judged in light of its circumstances:

What amounts to ‘fair dealing with any work for the purpose of private study, research, criticism or newspaper summary’ within the meaning of … the Copyright Act is a matter which must necessarily depend upon the fact of each case

Predating CCH Canadian by sixty-one years, Canadians were informed that decisions of fair dealing must be approached on a case-by-case basis, with a comprehensive examination. And after considering the circumstances, taking care to frame his decision in the realm of criticism, Justice Angers held that “A critic cannot, without rendering himself liable for infringement, reproduce the entirety of the work criticized without the authorization of the author.”

Yet the nuance of the decision-making-process faded from view and the legacy of Zamacois v. Douville was the belief that no reproduction of an entire work could be fair dealing. Fortunately, the blunt lines of that misconception were erased by the
Allen v. Toronto Star Newspapers Ltd. appellate decision of the Ontario Divisional Court (1997).

Some References
Zamacois v. Douville [1943] 2 D.L.R. 257
Sunny Handa, “Fair Dealing,” in Copyright Law in Canada, (Markham: Butterworths, 2002) 285-306.
Carys Craig, “The Changing Face of Fair Dealing in Canadian Copyright Law: A Proposal for Legislative Reform,” In the Public Interest: The Future of Canadian Copyright Law. Ed. Michael Geist (Toronto: Irwin Law, 2005) 437-461.

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