The Fair Dealing User Right: Canadian Copyright in 2012

Fair dealing is the one of the most important copyright user rights in Canada . It is crucial librarians, educators, and all copyright users thoroughly familiarize themselves with the fair dealing user right.

Fair dealing is the right, when fair and reasonable, to copy and reproduce a substantial portion of a copyrighted work without any permission from, or payment to, the copyright owner. While the Copyright Act of Canada says little about fair dealing and does not define what copying would be considered fair, this user right has been clarified over time through a number influential Supreme Court decisions. Described as an integral part of the Copyright Act by the court, fair dealing plays a critical role in ensuring balance between the interests of copyright owners and copyright users.

To help copyright users assess whether their copying falls within fair dealing, the Supreme Court established a two-part test, involving six criteria. In establishing this fair dealing test, the Supreme Court articulated that fair dealing is highly flexible doctrine open to the individual interpretation of all copyright users and that it must always be assessed on a case by case basis. The court clarified that the past copying practices and actions of copyright users help shape what is considered fair under the law.

Some copyright users might prefer that fair dealing be a static cut and dry set of rules in which the question of whether one’s copying is fair is concretely defined and easily ascertainable. It would certainly be easier, less burdensome, and less time consuming for copyright users if this were the case, as opposed to a fair dealing doctrine largely open to individual interpretation and assessed on a case by case basis.

In his article in Geist’s latest reader, “Bill C-32 and the Educational Sector: Overcoming Impediments to Fair Dealing,” Sam Trosow describes a host of special educational exceptions to copyright owner rights featured in Bill C-32. The primary issue with these special education exceptions is that they are essentially static cut and dry rules. Ultimately, they are narrow, restricted, complex, and challenging to understand and use. Being static and narrow, these special exceptions will never be able to adequately meet the needs of the educational community as they will never be able to keep up with the rapid pace of technological development. As technology moves ahead, the needs of the educational community change quickly in response. Copyright doctrine that does move forward at the same pace is simply inadequate.

It is precisely this reason that fair dealing is such a crucial copyright user right. By being flexible and open to individual interpretation, fair dealing can be immediately responsive to technological change as well as our changing needs regarding access to information. As such, fair dealing can meet the needs of the educational community as well as the library community and all copyright users. In a world of rapid copyright change, static sets of rules like the special education exceptions are not the answer. Flexible doctrines like the fair dealing user are the answer and the path towards continued fair and reasonable access to information.

Consequently, most education and library special interest groups in the post-CCH era have wisely dropped their support of special education exceptions in the face of broad fair dealing rights.

Carys Craig, in his article in Geist’s reader, “Locking Out Lawful Users: Fair Dealing and Anti-Circumvention in Bill C-32”, highlights some perceived inadequacies with the fair dealing user right. Primarily, he argues that for fair dealing to become a viable user right, it needs to become more like the open ended fair use defence in the United States. Since Craig wrote this article for Geist’s 2011 reader however, several radical changes, equal in influence to CCH, have rocked the world of Canadian copyright.

In June 2012, Bill C-11, the new copyright act, added the much desired categories education, parody, and satire to fair dealing. While the new copyright act fell short of adding the words “such as” to fair dealing, a series of five Supreme Court decisions from the following month in July significantly broadened and expanded the allowable categories of fair dealing. These decisions, Alberta (Education) v. Access Copyright in particular, expanded the scope of the fair dealing categories to such a degree that copyright scholar Michael Geist asked whether Canadian fair dealing had “effectively shifted” to the more open ended American fair use doctrine. These transformational events have eliminated most of the inadequacies that may have existed in fair dealing prior to June and July 2012.

Given the expanded, broadened, and clarified fair dealing doctrine that emerged out of June and July 2012, I argue there is nothing holding educators, librarians, and copyright users back from making full use of their fair dealing rights under copyright law.

In the face of copyright chill, it is important for educators, librarians, and copyright users to educate themselves about fair dealing and to promote fair dealing. Such education and promotion will continue to ensure a balanced copyright system in which access to information remains fair and reasonable for all.

Alan Kilpatrick