Fair Dealing, compared to Fair Use

Updated August 2013

In the four years that have passed since I began this blog, fair dealing in Canada has grown in character. While we enjoy some of the advantages of American fair use, Canadian amendment and interpretation is avoiding the disadvantages experienced by the United States in their development of the doctrine. Canada’s wellbeing is due to the good judgment of our Supreme Court who paid close attention to events south of the border, all the while shaping this exception in a manner consistent with Canadian culture.

Culture, of course, being almost indefinable. Raymond Williams noted it was one of the most complicated words in the English language – culture can only show its traits indirectly. Fair dealing in Canada is best described as measured and mindful of differing points of view. No wholesale abandonment of copyright may be sheltered under fair dealing, nor is fair dealing so encumbered by stricture that it cannot address modern, previously unforeseen circumstances wrought through new technologies, world-wide networks, and growing practices of creativity and learning.

In July 2012, after an amendment process that began in 2009 with extensive public consultation, the Federal Government of Canada amended fair dealing (Section 29) as follows:

Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

Fair dealing also applies to criticism, review and news reporting, with conditions of attribution. The language of the Copyright Act is here; a chapter I prepared discussing the system of copyright (with explanation of fair dealing) is here.

Unwritten in law, but implemented through judicial precedent, is a multi-factor framework of analysis. In CCH Canadian (2004), the Supreme Court of Canada upheld an appeals’ court decision that fair dealing must be examined on a case by case basis, via a framework of questions:

(1) the purpose of  the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. Although these considerations will not all arise in every case of fair dealing,  this list of factors provides a useful analytical framework to govern determinations of fairness in future  cases. (para 53, CCH Canadian (Canlii))

Two vital instructions were provided with the framework:

These factors may be more or less relevant to assessing the fairness of a dealing depending on the actual context of the allegedly infringing dealing. In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair (para. 59).
…
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).

These cautionary steps have helped Canadians to enjoy a flexible approach to fair dealing that was denied to Americans in the late twentieth century / early 21st century development of fair use.

American fair use takes authority from 17 U.S.C. § 107:

… the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

As a legal practice, fair use is traceable to a disputed biography of George Washington in 1841. Its formal presence in American law dates to 1976. I cover some of the history here; I also touch on the early history together with a brief examination of fair use’s darker days in America in “Fairness of Use: Different Journeys” in The Copyright Pentalogy—How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law (Ottawa: University of Ottawa Press, 2013).

Clearly, differences exist between the Canadian and American laws. American statutory language is more flexible, it offers the exception “for purposes such as…”. Thus the law is adaptable to uses yet-to-be-imagined. Whereas Canada appears locked into specific, delineated purposes. However, through the example set by the Canadian Supreme Court in CCH Canadian (the Court declared that “research must be given a large and liberal interpretation”) and the renewed emphasis upon flexibility in The Copyright Pentalogy (also touched on as “the Day of Five” in Notable Supreme Court Decisions in 2012), Canadian fair dealing is well situated to handle yet-to-be-imagined uses.

Differences also exist in the multi-facetted framework of inquiry. Obviously, the US framework is stipulated in the statutory language whereas Canada applies the framework because of precedent. But adding in the Supreme Court’s guidance that the framework itself must be flexible, and the care taken to ensure that Canada does not fall prey to the emphasis upon commerciality that plagued the United States, Canada’s framework of inquiry has sidestepped the rigidity of application as happened in the United States. Canada benefited by observing American events; fortunately, fair use is enjoying a reversal of fortune in the United States. My chapter in The Copyright Pentalogy examines these two aspects, as did an earlier work of mine: “Fair Dealing at a Crossroads,” in From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda (Toronto: Irwin Law, 2010), available here.