Fair Use, Fair Dealing, and Copyright Infringement

Ars Technica is reporting that during the course of the “tot dancing to a Prince song” trial, in which the Electronic Frontier Foundation and the tot’s mum are suing Universal for giving her “a bad-faith DMCA takedown,” Universal’s lawyer stated that all fair use must constitute infringement, and that fair use is an affirmative defence.

It’s worth noting for bloggers like us that whatever may be the legal position of fair use under U.S. law, in Canada it’s clear that fair dealing does not constitute infringement of copyright: the legislation is explicit on this point:

29. Fair dealing for the purpose of research or private study does not infringe copyright.

29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:

(a) the source; and
(b) if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer’s performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.

29.2 Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned:
[paragraphs as in s.29.1]