Why It’s Time for a Canadian Digitization Strategy Based on Fair Dealing

The court conducted a full analysis of the four U.S. fair use factors (which are similar to Canada’s six fair dealing factors) and concluded:

The totality of the fair-use factors suggest that copyright law’s “goal of promoting the Progress of Science…would be better served by allowing the use than by preventing it.” Bill Graham, 448 F.3d at 608 (quotation marks omitted). The enhanced search capabilities that reveal no in-copyright material, the protection of Defendants’ fragile books, and, perhaps most importantly, the unprecedented ability of print-disabled individuals to have an equal opportunity to compete with their sighted peers in the ways imagined by the ADA protect the copies made by Defendants as fair use to the extent that Plaintiffs have established a prima facie case of infringement.

The court continued:

Although I recognize that the facts here may on some levels be without precedent, I am convinced that they fall safely within the protection of fair use such that there is no genuine issue of material fact. I cannot imagine a definition of fair use that would not encompass the transformative uses made by Defendants’ MDP and would require that I terminate this invaluable contribution to the progress of science and cultivation of the arts that at the same time effectuates the ideals espoused by the ADA.

The strong endorsement of fair use in the context of digitization in the U.S. suggests that a similar initiative could be pursued in Canada using fair dealing. I have written that the recent Supreme Court of Canada copyright decisions bring Canadian fair dealing very close to U.S. fair use. A Canadian fair dealing analysis of a similar digitization initiative would easily pass the first stage purposes analysis given the obvious research purpose. The Canadian six factor test (purpose, character, amount, alternatives, nature, and effect) would depend on the specifics of the program – what is copied, what is made accessible, who has access, terms of access, etc. – but a court would likely be reluctant to rule against a well-crafted, reasonable initiative focused primarily on increasing access to books already purchased by Canadian libraries (full text search), preservation of those books, and enhancing access for the visually impaired. This is particularly true given the Supreme Court’s emphasis on technological neutrality. Canadian universities have already come together under the Canadian Research Knowledge Network to purchase universal site licenses to millions of articles and electronic books. The next step is to begin the process of digitizing their print collections and providing greater access by relying on fair dealing.


  1. pinch me, I think I’m dreaming
    Wow. The recent Supreme Court rules in favour of Fair Dealings, judge Richard Posner making intelligent and long overdue observations regarding the negative aspects of Intellectual Monopolies, and now this. What is with all this sudden outbreak of common sense? And the real question: How long can we hope it will continue?

    Of course the brass ring of a role back in copyright/patent terms and breadth, is still a long way off, but this is the sort of news which makes me believe that it might even be a possibility.

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