User Rights

• Author: Cameron Hutchison
• Pages: 145-173

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User Rights

A. INTRODUCTION

e apparent emphasis of the Copyright Act, and its pre-millennial in-

terpretation by courts, has been on the nature of the monopoly rights

granted to authors, and their exploitation by owners. During the past

f‌ifteen years or so, however, there has been a seismic interpretive shift

by Canadian courts in the way that key provisions of the Act (particular-

ly the so-called exceptions to copyright infringement) are to be under-

stood. Key to this shift is a new perspective which sees user rights of

works as contributing to, rather than diminishing, the goals of copy-

right policy. Beginning with the Supreme Court decisions in éberge v

Galerie d’Art du Petit Champlain inc and CCH Canadian Ltd v Law Society of

Upper Canada copyright law has been as much concerned with uphold-

ing the rights of purchasers and users of content as with protecting the

legitimate interests of copyright holders.

e concept of user rights is potentially broad and may include ele-

ments that are in the public domain available for all to use, for example,

the use of the idea behind a work. It may also include exhaustion rights

aorded to purchasers of copyrighted works. ese aspects of user

rights are discussed in Chapter . Here, the focus is on the legitimate

uses of copyrighted works during the term of the monopoly under fair

1 2002 SCC 34 [Théberge]; 2004 SCC 13 [CCH].

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dealing (sections –.) and the specif‌ic exceptions recited thereafter

in sections .–.. e dierence between these two sets of user

rights is pronounced. Fair dealing is a broadly conceived right whereas

the specif‌ic exceptions are unusually detailed and condition laden. It

makes sense, as discussed in Chapter , to treat the specif‌ic exceptions

as oering clear guidance to users as to how to def‌initively avoid in-

fringing copyright. Failure to meet the exact terms of these exceptions

should not be understood as infringement but as signalling the need to

analyze the use in terms of whether it constitutes infringement and if

so, whether fair dealing is a defence.

B. FAIR DEALING

e fair dealing exceptions, listed in sections –., are the centre-

piece of user rights under the Act. Section  states: “Fair dealing for the

purpose of research, private study, education, parody or satire does not

infringe copyright.” Additional exceptions are made for criticism and re-

view, and news reporting with the further requirement that the dealing

attributes the source and, if given, author, performer, maker, or broad-

caster of the work or neighbouring right. It is important to note that the

use of copyrighted material must be characterized as f‌itting one of these

purposes to be eligible for fair dealing. In CCH, the Supreme Court recast

fair dealing as an “integral part of the Copyright Act” and not merely as

a defence. Further: “e fair dealing exception, like other exceptions in

the Copyright Act, is a user’s right. In order to maintain the proper balance

between the rights of a copyright owner and users’ interests, it must not

be interpreted restrictively.” In CCH, the Supreme Court set out a two-

step inquiry to determine fair dealing, namely, to assess () whether the

dealing was for an allowable purpose and () whether it was fair.

1) Allowable Purposes

e reason for the dealing must f‌it within one or more of eight allow-

able purposes: research, private study, education, parody, satire, review,

2 See ss 29.1 & 29.2.

3 CCH, above note 1 at para 48.

4 Ibid.

5 Ibid at para 50.