The proper balance among these and other public policy objectives lies not only in recognizing the creator’s rights but in giving due weight to their limited nature. In crassly economic terms it would be as inefficient to overcompensate artists and authors for the right of reproduction as it would be self-defeating to undercompensate them. Once an authorized copy of a work is sold to a member of the public, it is generally for the purchaser, not the author, to determine what happens to it.
Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization. This is reflected in the exceptions to copyright infringement enumerated in ss.29 to 32.2, which seek to protect the public domain in traditional ways such as fair dealing for the purpose of criticism or review and to add new protections to reflect new technology, such as limited computer program reproduction and “ephemeral recordings” in connection with live performances.
It is fair to say that many in the copyright bar may have initially underestimated the shift that was underway. For example, Roger Hughes, one of Canada’s leading copyright experts (now a judge on the federal court) told one reporter that “Theberge really does not impact on digital copyright or digital situations that may arise, for instance, out of (the U.S. Digital Millennium Copyright Act).” Jay Kerr-Wilson, one of the most successful litigators in the recent cases, was then a counsel with the Canadian Cable Television Association said “people will probably try to use this by analogy to argue digital stuff, but it’s not a digital case. Canvas and paper isn’t bits and bytes.”
Two years later, it became clear that Theberge was the thin edge of the wedge, providing the opening for an aggressive move toward to copyright balance and user rights. In the CCH decision, a unanimous court embraced the dual purpose of copyright and the need for balance. The Chief Justice wrote:
Before reviewing the scope of the fair dealing exception under the Copyright Act, it is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The 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. As Professor Vaver, supra, has explained, at p. 171: ‘User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.’
Applying this statement to fair dealing, the court ruled that “the fair dealing exception under s. 29 is open to those who can show that their dealings with a copyrighted work were for the purpose of research or private study. ‘Research’ must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.”
The reaction to the CCH was mixed. The academic community emphasized its importance with articles by the likes of Craig, Drassinower and countless others that focused on the important shift in copyright (several of those articles are cited in the latest Supreme Court judgments).
The rights holder community alternated between dire warnings and denial. On the dire warnings side, Roger Hughes told one reporter: “who would (now) do a mathematical text or an encyclopedia or something like that without thinking, my goodness, who’s going to be handing out copies of this and why and under what circumstances?” Those same sentiments were repeatedly echoed during the Bill C-11 discussions and will undoubtedly resurface in reaction to last week’s decisions (though no one asks that question with respect to an encyclopedia any more).
More common was the denial side, with arguments that users’ rights was simply a metaphor and that little had changed. For example, Access Copyright’s immediate reaction was “this ruling does not change the fact that most copying of copyright protected works does not fall under fair dealing. The Supreme Court stated definitively that copyright does exist in original works, and that is why organizations must sign an Access Copyright licence or risk breaking the law.”
Which brings us to the recent five copyright cases. For those opposed to the CCH user rights model, these cases represented the best, possibly last, hope to reverse the trend. Justice Ian Binnie, who wrote the Theberge majority, had retired from the court and two new Harper appointees, Justices Moldaver and Karakatsanis had just joined. With no prospect of significant legislative copyright reform for five to ten years (with the possible of exception of ACTA/TPP related reforms) and no real likelihood of the Supreme Court grappling with copyright to this degree for the foreseeable future, this was it.
The arguments against CCH and user rights are unsurprisingly found throughout the briefs. For example, the Canadian Publishers’ Council intervention argued the meaning of “user rights” is overstated:
The Appellants and other Intervenors rely extensively on the concept of “users’ rights” to promote a view of fair dealing that would substantially curtail copyright holders’ rights and permit extensive copying of behalf of others. Their use of the term to justify this severe curtailment of exclusive rights illustrates the dangers of treating the word ‘user rights’ literally, rather than as a metaphor to express the importance of user interests.
Access Copyright focused on the same concern:
In CCH this Court raised expectations when it held that fair dealing is a “user’s right”. Those raised expectations have led users like the appellants to ask that the right be clarified and made more predictable. However, this should not come at the expense of upsetting the balance between users’ and creators’ rights under the Act.
In the song previews case, CMRRA argued that users should be given “low weight in the balance intended to encourage the dissemination of artistic and intellectual works in the public interest.” SOCAN also focused on the dangers of user rights in the song previews case:
This Court has called fair dealing a ‘users’ right.” But, as the text of the Act and this Court’s jurisprudence reveal, this ‘user’s right’ is not an unlimited right to use. The limited purposes for which the fair dealing defence is available and this Court’s guidance on determining whether a particular dealing is fair circumscribe the defence of fair dealing and restrict its application to those circumstances where the user herself is participating in an activity that furthers the public interest purposes of the Act.
In seeking to establish these limits, SOCAN argued that research under fair dealing was limited to “the systematic investigation into and study of materials and sources in order to establish facts and reach new conclusions.”
CRIA tried to rework CCH by focusing on balance not constraining rights owners and users:
the proper approach to the construction of the Act is to focus upon a construction that achieves the appropriate balance. A large and liberal construction of the Act that unduly constrains the rights owners or users should be avoided. In weighing the balance a court must also give consideration to Canada’s obligations under the TRIPS Agreement discussed below.
Given these submissions, if the Supreme Court wanted to backtrack from CCH and users’ rights, it certainly had ample opportunity to do so. Yet rather than backtrack, it doubled down on users’ rights and then added yet another foundational lens in technological neutrality to examine copyright that is likely to favour users.
First, a unanimous court in the song previews reset the law with an emphasis once again on balance and user rights:
In Theberge v. Galerie d’Art du Petit Champlain inc., this Court noted that copyright requires “a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator” (para. 30). Theberge reflected a move away from an earlier, author-centric view which focused on the exclusive right of authors and copyright owners to control how their works were used in the marketplace: see e.g. Bishop v. Stevens,  2 S.C.R. 467, at pp. 478-79. Under this former framework, any benefit the public might derive from the copyright system was only “a fortunate by-product of private entitlement”.
Theberge focused attention instead on the importance copyright plays in promoting the public interest, and emphasized that the dissemination of artistic works is central to developing a robustly cultured and intellectual public domain. As noted by Professor David Vaver, both protection and access must be sensitively balanced in order to achieve this goal. CCH confirmed that users’ rights are an essential part of furthering the public interest objectives of the Copyright Act. One of the tools employed to achieve the proper balance between protection and access in the Act is the concept of fair dealing, which allows users to engage in some activities that might otherwise amount to copyright infringement. In order to maintain the proper balance between these interests, the fair dealing provision â€œmust not be interpreted restrictivelyâ€.
Second, the court built on this approach by:
- adopting expansive approaches to private study (now personal study) and research (a personal interest in the issue or work may be sufficient to qualify)
- expanding private study and research to include instruction
- establishing a low threshold for the first stage purposes test of fair dealing (effectively shifting the law to a fair use model)
- confirming that the copying purposes of not only the actual copier, but the intended recipient as well must be considered (effectively allowing an intermediary to benefit from the purposes of the beneficiary of the copying)
- rejecting an aggregate approach for considering the amount of copying, finding instead that each copy must be considered individually
- finding that there was little evidence of economic harm from the copying at issue in the Access Copyright case
These are critically important rulings that add significant flexibility to fair dealing that extends far beyond the CCH case. Had the court stopped there, these would represent a major victory for copyright balance and users’ rights. But the court goes further, crafting a second foundational lens with which to consider copyright claims: technological neutrality. As I noted earlier, the court frames technological neutrality as a matter of balance within the Copyright Act and as a means to avoid the double dipping that occurs when new fees or restrictions are layered onto new technologies.
The net effect is to firmly reject claims that users’ rights is merely a metaphor. In the eyes of the Supreme Court of Canada, it is an essential component of Canadian copyright law that is integral to achieving the purpose of copyright it identified over a decade ago – a balance that “lies not only in recognizing the creator’s rights but in giving due weight to their limited nature.”