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Thursday Thinkpiece: Geist on Fair Dealing and Fair Use

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Fairness Found: How Canada Quietly Shifted from Fair Dealing to Fair Use in The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, M. Geist Ed.
Michael Geist
Ottawa: University of Ottawa Press, 2013

(Footnotes omitted; they are available in the version via the hyperlink above.)

ii. The Shift from Fair Dealing to Fair Use

Fair dealing in Canada still requires a two-stage analysis, yet the cumulative effect of legislative reform and the Supreme Court decisions is that the first stage has become so easy to meet that Canada has a fair use provision in everything but name only. Conventional fair use may require only a single test to determine fairness, but the Canadian fair dealing/fair use hybrid comes close by ensuring that virtually all uses will meet the purposes standard and proceed to the second-stage, six-factor analysis described above.

There are three developments responsible for this shift. First, as noted above, the number of fair dealing purposes has grown as Bill C-11 added education, parody and satire to the current list of research, private study, news reporting, criticism and review. This list is quite broad, as many uses are likely to fit within one of the purposes. While a restrictive interpretation of these purposes would have created significant limitations on its applicability, the expansive approach articulated by the Court means that the existing purposes are increasingly likely to capture a broader range of activities.

The research purpose alone is likely to extend to uses far beyond more constrained scientific research, as the Court has ruled that research need not be structured or formalized. Rather, “piecemeal, informal, exploratory, or confirmatory” research all qualifies as research for fair dealing purposes. Indeed, with the inclusion of consumer research and “personal interest” within the definition, fair dealing research covers common commercial activities as well, opening the door to greater business reliance on the research purpose within fair dealing.

If the use in question is still not covered by the expansive approach to research, the broadening of the private study purpose should further expand the allowable purposes. The Court has removed the need for a structured or isolated environment for private study, thereby opening the door to a wide range of activities that can be characterized as study.

Canadian courts will also give broad interpretations to the remaining fair dealing purposes, including criticism, review, news reporting, parody, satire and education. For example, in Warman v Fournier, a 2012 Federal Court of Canada decision, the court acknowledged the need for a broad approach to the news reporting purpose. At issue was the reproduction on an Internet chat site of several paragraphs from opinion pieces published in the National Post newspaper. The court ruled that the copying was insubstantial and did not raise infringement concerns. In the alternative, it concluded that posting news reports on an Internet site could itself be regarded as news reporting:

The SCC stated in CCH, at paragraph 51, that the fair dealing purposes (in that case, research) “must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.” Applying this large and liberal interpretation to news reporting, I find that the respondents’ dealing in respect of the Kay Work falls within this purpose. They posted the excerpts of the Kay Work on Free Dominion to promulgate the facts recounted in that article. Thus, the first criterion for fair dealing is met. The news reporting exception also requires that the source and author be mentioned, which is also satisfied in this case.

The new education purpose must also be granted a wide berth. The government specifically rejected requests to establish a narrow definition of education within its copyright reform package. By leaving the term undefined, courts are free to follow the Court’s lead and adopt an expansive approach to education that extends far beyond accredited educational institutions. Rather, consistent with a research purpose that includes personal interest, the education purpose may well include personal education initiatives and efforts to become better informed about any issue of interest.

Second, having adopted an expansive approach to the fair dealing purposes (and the government having added new purposes that will be subject to a similar expansive analysis), the Court added another wrinkle to the fair dealing test, stating that the first part involves a low threshold: “In mandating a generous interpretation of the fair dealing purposes, including ‘research’, the Court in CCH created a relatively low threshold for the first step so that the analytical heavy-hitting is done in determining whether the dealing was fair.”

Note that the CCH decision never describes the first-stage purposes test as having a low threshold, though a broad and liberal interpretation may lead to that conclusion, as it ensures that the user’s right of fair dealing will benefit from a full analysis of whether the use is fair. In that sense, the Court is right that the “heavy hitting” is done in wading through the six-factor analysis to determine whether the dealing is fair, which is consistent with a fair use approach. The signal from the Court is unmistakable: consistent with the exercise of a user’s right, potential fair dealing uses are best assessed through a full fairness analysis. By confirming a low threshold for the first-stage purposes test, the Court has ensured that virtually all purposes will pass the first stage and be considered on the basis of the fairness of the use, not the intended purpose (which is itself only one of the six factors in the second-stage test).

Third, the Court has opened the door to considering the copying purposes of not only the actual copier, but the intended recipient as well. This approach started in the CCH case, but was expanded considerably in the Alberta (Education) and song previews cases, adding further flexibility to the fair dealing provision by requiring courts to undergo more extensive analysis of the purposes of the copier and recipient or beneficiary.

For example, in the Alberta (Education) case, the teacher is technically making the copy on behalf of the student; however, the Court found that their purposes are inseparable, noting that “[t]he teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study.” The Canadian Publishers’ Council, which intervened in the case, addressed this specific issue before the Court:

Accepting the test proposed by the Appellants that their purposes are the purposes of their students would hollow out the intended closed categories of allowable purposes in the Act. It would subject all unauthorized copying for others that might be for their research, private study, criticism, review or news reporting purposes into an allowable purpose for the copier, greatly expanding the scope of the fair dealing exception. It would require courts to ignore a copier’s actual purposes and pay regard only to the possible allowable purposes of another person. Thus the fair dealing provision would shelter intermediaries who act on their own initiative and do not themselves have an allowable purpose.

A similar expansion arose in the song previews case, where Apple makes previews available for the purposes of their customers’ research. The Canadian Recording Industry Association warned against this issue in their intervention in the case:

Even if it is accepted that Services are entitled to rely on the “research” purpose of consumers, the Services only purpose in dealing with Previews is not to facilitate that research. The Services also use Previews for their own economic benefit in marketing the sale of downloads of sound recordings and that is their predominate [sic] purpose for using Previews. The Services are not therefore in a relationship with consumers comparable to the very special relationship between the Law Society’s Great Library and library patrons.

The majority of the Court obviously rejected this view and has now rendered three decisions where the intermediary copier stands in the shoes of the beneficiary—CCH (library copying for patron), Alberta (Education) (teacher copying for student), and Bell (Apple making song previews for customers). This flexibility will be used by others to argue that their copying is conducted on behalf of a permitted purpose of the recipient, creating a very open approach to the first-stage purposes test.

While the first-stage fair dealing test should now be very easy to meet, Canadian fair dealing resembles US fair use in another way— it is not a free-for-all, since merely meeting the first-stage test only opens the door to the full fairness analysis. This is consistent with a balanced copyright system that addresses both creator rights and user rights, since the analysis focuses on whether the use of or dealing with a work is fair, not whether it fits within one of the fair dealing categories or purposes.

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