After several attempts by successive minority parliaments to revamp Canada’s Copyright Act in order to bring it into the age of the Internet, Bill C-11, Canada’s current copyright reform bill, is poised to become law. A key aspect of the new law will be to ensure that the rights of copyright owners are kept in balance with the rights of users of copyright protected works. This will be achieved, in part, by building into the new law an expanded version of the current “fair dealing” provisions of the Act, which allows for limited copying of copyright protected works for certain enumerated purposes.
Although fair dealing is, procedurally, a defence that can be raised in the face of a copyright infringement claim, it has been characterized by the Supreme Court of Canada as a “user’s right” as opposed to a mere defence, which must be liberally construed in order to effect the appropriate balance between the rights of copyright owners and users. Currently, fair dealing is limited by the Copyright Act to situations in which the copyright protected work is copied for the purpose of research or private study, criticism or review or for the purpose of news reporting. However, as an initial consideration, such uses must reference the source of the copyright protected work, and if available, the name of the work’s author, performer, maker or broadcaster.
The difficulty in establishing whether or not the copying of a work constitutes fair dealing lies with the definition of the term “fair,” which is not defined in the Act. Rather, the definition is judge made, and was significantly revised by the Supreme Court of Canada in the 2004 Law Society Case. In a nutshell, the Court in that decision developed a non-exhaustive list of six criteria which should be considered in assessing the validity of the defence of fair dealing. These criteria require a consideration of: 1) the purpose of the dealing; 2) the character of the dealing; 3) the amount of the dealing; 4) the alternatives to the dealing; 5) the nature of the work itself; and 6) the effect of the dealing of the work. In almost all cases, it is the first and third criteria that garner the most attention.
Although the “purpose” of fair dealing is defined by the Act (criticism, news reporting, private study or review), the first requirement of proving fair dealing requires that such purposes should be broadly, and not restrictively construed, in keeping with the goal of the Act to balance the rights of users and copyright owners. In other words, the Court will look objectively at the defendant’s declared purpose for its copying of the work, in order to ascertain if the copying of the work is indeed for a valid purpose. For example, “research,” is not limited to non-profit educational institutions, but may also include private research conducted for profit.
The amount of the dealing is also one of the more determinative factors in assessing the fair dealing defence. In most cases, it will not be considered fair dealing to copy the entirety of a work, unless, as in the case of certain works of art, reproducing the entire work may be the only possible way of then criticising or reporting on it. A common fair dealing defence involves the reproduction of excerpts of books for the purposes of research or criticism. This is generally acceptable; however, the length of the excerpts must be taken with regard to the total length of the copied work itself. For example, copying a short paragraph from a novel may be considered fair dealing, but copying a short paragraph from a short essay may not.
Bill C-11 will broaden the defence of fair dealing by listing three new “purposes," which are: education, parody and satire. This is essentially an effort to rectify uncertainty that has crept into the law, especially as it pertains to use by educational institutions of copyright protected work. The inclusion of parody and satire is likely an effort to bring Canada’s Copyright Act more in line with the United States’ copyright laws, which includes parody and satire as part of what the US calls its “fair use” defence to copyright infringement. To date, Canadian Courts have been asked to consider parody and satire as possible expansions of the fair use defence, but have left the expansion of this defence to parliament. As with the United States, the defence of fair dealing in cases of parody and satire will most likely be used when dealing with artistic, photographic and cinematographic works. Also in line with the US experience, expect Canadian Courts to allow for fair dealing based on parody even in situations where the parody is done for profit.
Even with the addition of further fair dealing purposes by Bill C-11, the Court’s will still look to and apply the criteria set out in the Law Society Case when assessing any defence of fair dealing. It will therefore be incumbent upon users of copyright protected works to fully understand the legal implications of their use of other parties’ works before they reproduce them in any quantity or form, as the application of the fair dealing defence is entirely dependent upon
James Katz is an Associate with the law firm of BrazeauSeller.LLP. He practices in the areas of litigation and intellectual property. James can be reached at 613-237-4000 ext. 267 or at jkatz@brazeauseller.com. For more information about James, please visit www.brazeauseller.com.
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