User Rights

AuthorCameron Hutchison
 
User Rights
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].
  
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.
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.

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