The Case for Fair Use in Canada

Last week I delivered an invited talk to Canadian Heritage's Copyright Policy Branch on fair use.  The talk, which is apparently one of several they have planned on the issue, was in response to the increasing attention being paid to the limitations of fair dealing and the benefits of expanding fair dealing or adopting a U.S. style fair use provision.

There is no podcast version of the talk, though you can view it below. 

The talk opens by speculating on why fair use has emerged as a "hot issue." I point to several factors including the emphasis on balance within copyright, the consequences of digitization, and the growing class of creators focused on access.  I also note that the emphasis on DRM and anti-circumvention legislation may also play a role since they exacerbate interoperability concerns that some hope can be solved by fair use.

After a brief legal backgrounder and an acknowledgement that fair use is not a panacea, I proceeded to identify seven reasons why Canada should expand the fair dealing provision.  My seven are:

  1. It is consistent with the Supreme Court of Canada's vision of copyright.  If we are to take the SCC's view of balance and user rights seriously, then fair dealing must not be unduly constrained by limited categories of uses that are eligible for fair dealing.
  2. It is consistent with public practice. Taping television shows, transferring songs from CD to iPod, sharing clips, etc. are all part of everyday life.  Copyright law should reflect these widely accepted practices and fair use is one way to do that.
  3. It is consistent with artists' needs.  Over the past year, the CMCC, Appropriation Art, and the Documentary Organisation of Canada have all pointed to the need for an expansion of fair dealing, calling attention to the fact that artists' depend upon fair access for their own creativity.
  4. It is consistent with emerging expression.  The growth of blogging, online video, user generated content, and collaborative social media is an important development that would be supported through greater legal certainty from fair use.
  5. It is consistent with business' needs.  Businesses such as Telus and the Digital Security Coalition have focused on fair use, recognizing that new business models, new services, and funding for Canadian ventures may depend upon a fair use legal framework that encourages innovation.
  6. It is consistent with emerging international practice.  Fair use and the identification of new exceptions, such as parody, time shifting, and device shifting are finding an audience worldwide.
  7. It is consistent with the long-term interests of rights holders.  I refer here to rights holders such as the movie and music industry, who might experience a reduction in their own licensing costs with a fair use model.  Moreover, copyright collectives may find that fair use best meets the needs of their members while also representing the best available alternative in certain contentious copyright issues (ie. education exemption).

I conclude by noting several options for Canada including making the categories in the current fair dealing provision illustrative rather than exhaustive (the preferred approach), creating a new fair use provision, or adopting a piecemeal exceptions approach.

One Comment

  1. Russel McOrmond says:

    CLUE and Fair Use
    Just for the record, CLUE: Canada’s Association for Free/Libre and Open Source Software, has also called for Fair Use.

    “Canada should take the lead from our trading partners and adopt a living “fair use” model. This should include carving out from copyright private activities such as time, space and device shifting of legally acquired content. Canadians should not need permission or payment to carry out these activities which most Canadians already believe is legal.”

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