The Changing Face of Fair Dealing in Canadian Copyright Law: A Proposal for Legislative Reform
| Author | Carys Craig |
| Pages | 437-461 |
FIFTEEN
The
Changing
Face
of
Fair
Dealing
in
Canadian
Copyright Law:
Carys
Craig
A.
INTRODUCTION
The
fair
dealing
defence
performs
an
integral function within
the
copy-
right system:
it
permits substantial uses
of
copyright-protected works,
which
would otherwise
be
infringing,
in
order
to
ensure
that
copyright
does
not
defeat
its own
ends.
By
creating
the
necessary "breathing
space"1
in the
copyright system,
the
fair
dealing
defence
acknowledges
the
col-
laborative
and
interactive nature
of
cultural creativity, recognizing
that
copyright-protected works
can be
used, copied, transformed,
and
shared
in
ways
that
actually
further
— as
opposed
to
undermine
— the
purposes
of
the
copyright
system.2
If
copyright
is to be
justified
as
a.
means
to en-
1
In the
famous Supreme Court decision
of
Campbell
v.
Acuff-Rose
Music,
Inc.,
para. 579,
(1994), Justice Souter referred
to the
"fair
use
doctrine's guaran-
tee of
breathing space within
the
confines
of
copyright."
The
need
for
breathing
space
flows
from
"the
need
simultaneously
to
protect
copyrighted
material
and
to
allow others
to
build upon
it":
(ibid,
at
para. 575).
2
In
this
sense,
the
concept
of
fair dealing embraces
the
dilemma
that
pervades
all
aspects
of
copyright policy-making:
the
need
to
minimally
restrict
the
gen-
eral dissemination
and use of
cultural products,
and
maximally promote
both
knowledge production
and the
distribution
of
authorized copies
of
protected
works.
See
Economic Council
of
Canada,
Report
on
Intellectual
and
Industrial
Property
(Ottawa: Public Works
and
Government Services
Canada,
1971)
at
31-35-
437
A proposal for Legislative Reform
438 IN THE
PUBLIC
INTEREST:
THE
FUTURE
OF
CANADIAN
COPYRIGHT
LAW
courage
the
creation
and
exchange
of
intellectual works
for the
benefit
of
authors
and
society
as a
whole,
then
a
suitable
fair
dealing
defence
is an
essential
part
of
that
justification.
Unfortunately,
the
state
of
Canadian jurisprudence
on
fair
dealing
has
tended
not to
reflect
the
critical
nature
of the
role
that
it
plays. Rather,
fair
dealing
was for
many years
all but
redundant
in the
Canadian courts:
rarely raised
and
cursorily rejected.
In
recent
years,
it has
made more fre-
quent appearances
in
judicial decisions,
but
without much more
success.3
It
is
only
in the
last
three
years, with
the
appellate decisions issued
in the
case
of CCH
Canadian
Ltd.
v. Law
Society
of
Upper
Canada,4
that
we
have
begun
to see a
reversal
in the
misfortunes
of
fair
dealing.
In
CCH,
both
the
Federal Court
of
Appeal
and the
Supreme Court rejected
the
strict
con-
struction
of
fair
dealing
that
had
characterized judicial decision-making,
and
insisted upon
the
integral nature
of
fair
dealing
in
copyright
policy.5
This
new
approach
flowed
from
an
acknowledgement
of the
public
as an
intended
beneficiary
of the
copyright
system.6
However,
the
optimism generated
by
these judgments should
be
tem-
pered
by a
concern with
the
statutory
formation
of the
fair
dealing pro-
visions, which continue
to
reflect
a
vision
of
fair
dealing
as a
narrow
exception
to the
copyright rules,
and one
that
must
be
restrictively
ap-
plied.7
In
their
current
form,
the
Canadian
fair
dealing provisions have
the
capacity
to
drastically undermine
the
significance
of the
Supreme
Court's recent stance
on
fair
dealing,
and to
provide
a
route
by
which lower
courts
can
avoid
the
policy implications
of the CCH
case.
My
argument
is
that
the
rigid
and
restrictive
fair
dealing provisions currently found
in the
3
Below
part
6(2).
4
2002
FCA
187,
[2002]
4
F.C.
213,
212
D.L.R.
(4th)
385
[CCH
(FCA)
cited
to
F.CJ;
13,
[2004]
i
S.C.R.
339 ,
(2002),
30
C.P.R.
(4th)
i
[CCH
(SCC; cited
to
S.C.R.].
5
See CCH
(FCA),
ibid,
at
para. 126;
CCH
(SCO,
ibid,
at
para.
48; and
below,
part
B(3).
6 See
Iheberge
v.
Galerie
d'Art
du
Petit
Champlain
inc.,
org/ca/cas/scc/2OO2/2OO2SCC34.html>,
paras.
30-31,
(2002)
[Theberge
cited
to
S.C.R.];
CCH
(FCA),
above
note
4, at
para.
23;
CCH
(SCC),
above
note
4, at
para.
10;
below
part
C(i).
7
The
fairness
of a
defendant's
dealing
is
relevant
only
if the
purpose
of the
deal-
ing fits
within
the
limited purposes enumerated
in the
Copyright
Act
[the Act],
and in the
case
of
criticism,
review,
or
news
reporting, only
if the
source
of
the
work
is
mentioned.
Copyright
Act,
R.S.C.
1985,
c.
C-42,
gc.ca/en/C-42/>,
ss.
29-29.2;
see
below
part
B(i).
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