CRIA Targets Fair Dealing: Tells Supreme Court New Restrictions Needed on User Rights

One of the most frequently discussed issues at the hearings on Bill C-32 was the implications of extending the fair dealing categories to include education, parody, and satire. Throughout the discussion, the starting point was the Supreme Court of Canada’s approach to fair dealing, which consists of a two-stage analysis. First, the use must qualify for one of the fair dealing categories. Second, assuming it does qualify under one of the categories, the court identified six factors to consider to gauge the fairness of the dealing in Law Society of Upper Canada v. CCH Canadian, the seminal case on fair dealing in Canada.  The six factors identified by the court are:

  1. The Purpose of the Dealing – the Court explained that “allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users’ rights.”
  2. The Character of the Dealing – one should ask whether there was a single copy or were multiple copies made. It may be relevant to look at industry standards.
  3. The Amount of the Dealing – “Both the amount of the dealing and importance of the work allegedly infringed should be considered in assessing fairness.”  The extent of the copying may be different according to the use. 
  4. Alternatives to the Dealing – Was a “non-copyrighted equivalent of the work” available?
  5. The Nature of the Work – “If a work has not been published, the dealing may be more fair, in that its reproduction with acknowledgement could lead to a wider public dissemination of the work – one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair.”
  6. Effect of the Dealing on the Work – Will copying the work affect the market of original work?  “Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair.”

University of Western Ontario professor Sam Trosow now notes that the Canadian Recording Industry Association has taken aim at the fair dealing test, submitting a factum to the Supreme Court in a forthcoming case on whether song previews may constitute fair dealing that argues that the court’s analysis is, well, wrong (Trosow also notes the surprise of finding the lawyer representing Canadian universities arguing in favour of this fair dealing test now also arguing against it for the recording industry).

For example, in CCH the Supreme Court of Canada stated:

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.

CRIA plays with the court’s wording to arrive at a very different conclusion:

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 of owners or users should be avoided.

It should be immediately apparent that CRIA’s wording is not what the court said. The court said that fair dealing is a user’s right that should not interpreted restrictively. CRIA instead says that a large and liberal interpretation that constrains rights holders should be avoided, which is not even close to the same thing.

CRIA then proceeds to argue for an entirely new fair dealing analysis, just a few years after the Supreme Court of Canada clarified the issue. CRIA’s far more restrictive framework, which it claims is based on the objects of the Copyright Act and the Berne Convention’s three-step test:

(a) exceptions form a balance to protect against excessive control of copyright holders that would limit the ability to incorporate and embellish creative innovation on the public domain;
(b) exceptions should be clearly defined and narrow in scope and reach;
(c) exceptions should not permit uses which enter into economic competition with the ways that copyright holders normally extract economic value and thereby deprive copyright holders of significant or tangible commercial gains; and
(d) exceptions should not cause or have the potential to cause an unreasonable loss to the copyright holder.

The CRIA proposal would significantly undermine fair dealing as it currently stands in Canada. The first prong’s focus on the public domain is entirely misplaced since exceptions are not even needed for public domain works – those works can be used without limitation. The second prong on narrow exceptions is a given, but the notion that research (which is widely found as an exception) is offside international law is a major stretch. While CRIA argues for narrow categories, the reality is countries such as the U.S., Israel, and the Philippines have all adopted fair use provisions that are far broader than any exception under Canadian law.

The third and fourth prongs seek to distill the court’s six factor test into one – the economic impact of fair dealing. The Supreme Court of Canada took a very different view on the economic impact issue:

Finally, the effect of the dealing on the work is another factor warranting consideration when courts are determining whether a dealing is fair.  If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair.  Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair. [emphasis added]

CRIA proceeds to use its test (“if the framework for the construction of exceptions developed above is applied”) on several occasions in the factum, displaying remarkable hubris of telling the Supreme Court of Canada that it is wrong and its manufactured test for fair dealing is right. CRIA’s legal arguments are weak – they rely almost entirely on non-Canadian law since Canadian law clearly does not support its position – but in doing so, it is taking aim at fair dealing in an effort to revert back to a time when there was little pretense of trying to strike a balance in Canadian copyright law.


  1. Hubris?
    So law professors never, ever find fault with SCC decisions?

  2. Bob,

    And apparently, once something appears in a SCC ruling, it should never be discussed or its interpretation debated again.

    Unless it’s something Michael Geist disagrees with; and then it should be the subject of regular, inaccurate blog postings.

    “The ironing is delicious” (Bart Simpson)

  3. James Plotkin says:

    The Three-step test in the Berne convention is clearly a guideline more than a standard. To say that the use shouldn’t create an “unreasonable loss” to the rights holder is completely subjective and depends on a particular nations values when it comes to copyright.

    Clearly the Americans have a larger definition of what does or does not cause “unreasonable losses” than we do (or at least different from what our current copyright law contains).

    In that sense, the SCC’s test in CCH does comply with the Berne test in that it’s the Canadian incarnation and implementation of those guidelines.

    CRIA or anyone else for that matter can interpret the broad and sweeping language in the Berne test to mean whatever they want. What’s a narrow exception? surely there isn’t an absolutely right answer.

    All this to say that I don’t think the SCC will give much credence to the rationalization CRIA puts in front of them.

    Who knows? maybe the Gov will legislate a response sooner rather than later. Doubt it…but maybe.

  4. Myopia for the win!

    Ignoring, and even excluding, groups concerned with the curtailing of user rights & freedoms might feel like a victory but in the end will perpetuate the unworkable framework we already have.

    I suppose there is some comfort in the concept of consistency … The world continues to be driven by money & power rather than common sense.

  5. Crockett,

    What does your link have to do with this posting about CRIA? Isn’t there a law of on-topicness in these comment streams?

    I would also point out there’s a difference between excluding groups and those very groups refusing to participate in a process.

  6. If CRIA succeeds at the SCC, AUCC would get hit big time and maybe even blown out of the water at the Copyright Board. Very interesting that CRIA and AUCC both have the same lawyer, Glen Bloom.

  7. What does your link have to do with this posting about CRIA?
    John, it has to do with the more salient point of curtailing user rights. Unfortunately, the CRIA is not the only culprit in that regard.

    “Open Rights Group, one of the leading digital civil rights groups in the UK, asked for and was denied permission to sit in on these government-brokered discussions. (The OECD document elsewhere notes that policy-making processes should involve “transparency, fair process, and accountability.)”

  8. Glen Bloom also acted for the law publishers in CCH.

    But on one level, all of this is irrelevant. The law pubs responded to CCH by going almost 100% digital and baking reuse/redistribution into their prices. This is already happening with educational publishing. Overall, if the Supremes continue to get this wrong there will (a) be less material getting published and (b) publishers will find ways to end-run the whole user-rights nonsense by setting terms that capture upfront the revenue they see as lost through an overly-liberal application of fair dealing.

  9. @Bob “publishers will find ways to end-run the whole user-rights nonsense by setting terms that capture upfront the revenue they see as lost”

    I have actually advocated for this very approach of pricing in usage rights in the up front purchase. This will in turn do an, as you say, end-run around the whole creator-rights ‘nonsense’ and monetize the behavior that everyone is participating in anyways. Users get the rights they want and creators get paid for it. So simple and subtle, but John is free to ignore me as I must be somehow excusing blatant infringement.

  10. James Gannon says:


    It’s not so much that the SCC decisions are only questioned if they are disagreed with, it’s more the selective use of their precedential value when the subject of copyright reform comes up.

    For instance, one of the other “most frequently discussed issues at the hearings on Bill C-32” was whether the notice-and-notice regime in Bill C-32 was sufficient for ISPs to remain willfully ignorant to infringing activity over their networks.

    Of course, this was already decided in the Tariff 22 SCC case decided in the same year as CCH. When the subject of N&N comes up among academic discussions recently of ISP liability, you rarely hear any mention of Tariff 22. Even though, at the time, Geist hailed the decision as “another defeat for the music industry”, there’s no mention of the decision in his more recent N&N posts, despite the ruling endorsing US and EU style notice-and-takedown.

    “I would point out that copyright liability may well attach if the activities of the Internet Service Provider cease to be content neutral, e.g. if it has notice that a content provider has posted infringing material on its system and fails to take remedial action.”

    “I agree that notice of infringing content, and a failure to respond by “taking it down” may in some circumstances lead to a finding of “authorization”.”

  11. Honestly, Crockett, what do you want? The OECD clearly heard opinions from all over the map, including the EFF – from the EFF website: “EFF and the other members of the OECD’s Civil Society Information Society Advisory Council (CSISAC) were unwilling to accept the high profile OECD Communiqué on Internet Policy-making.”

    That the OECD disagreed with opinions from their own CSISAC doesn’t mean they shut them out. The EFF and others can now make plenty of hay about being champions of an unregulated net.

    On the actual topic of this posting, CRIA’s factum is motivated by a desire to find that ever-elusive balance we keep hearing about in copyright discussions. I understand you and others will disagree with CRIA on principle because of the evil you perceive in them (how dare they expect people not to steal?) but they have a right to express their opinion to the SCC, and suggesting this factum is an attempt to somehow shut user groups out of the discussion or curtail their rights is absurd. Fair dealing is a recognized provision within the Canadian act – artists, like those represented by CRIA respect and use fair dealing all the time. I suspect they just want to make sure it is properly defined so practiced infringers cannot find a safe harbour within it.

  12. The further they go
    The further down this road of control the entertainment industry goes, the more likely the public is to switch to user generated content that can be remixed, copied, given away, etc. The industry wouldn’t be the first to strangle itself.

  13. James Plotkin says:

    I don’t know about that…
    Degen said:

    “artists, like those represented by CRIA respect and use fair dealing all the time. I suspect they just want to make sure it is properly defined so practiced infringers cannot find a safe harbour within it. ”

    I don’t think you can say that with any degree of certainty. While many musicians do encourage the use and remixing of their content, others are categorically against it (Randy “I know nothing about a lot and a lot about nothing” Bachman ,Prince and Yoko One to name just a few).

    Let’s be honest. No P2P or torrent pirate will be able to successfully mount a fair dealing defense in Canada. Our inclusive provision is already very restrictive (specifically compared with the American “open” category). What, is everyone doing private research nowadays? even still, the infringer would fail when the court got to the part of the test where they discuss the character of the dealing, the amount of the dealing (we don’t download snippets of films…we download the whole film), alternatives (…like paying for it) and the effect of the dealing on the work (theft = loss of profit)

    I must respectfully submit that I thoroughly disagree with you’re assesment. Though I agree that everyone, including CRIA is entitled to their opinion and may manifest that opinion in a factum, blog, tweet or any other medium, they are certainly not in it for balance and the greater good of Canadian culture. They are in it (and who can blame them) to get the most money possible for their members.

    Any other rationalization is kind of unrealistic and silly. Again, that being said, I have no problem with them submitting a factum.

    Let’s all remember that fair dealing, as it is, is no safe harbor for infringers. I highly doubt the modifications in the upcoming copyright bill will change that fact. It’s more likely that the gov won’t go far enough in expanding the fair dealing category rather than go too far.

  14. Free Previews
    What’s the big deal with free previews? Much of this stems to their loss in trying to kill previews and the SCC deeming they qualified as market research. I won’t buy an album if I can’t preview it. It’s that simple. No preview = no sale period.

    Previews are probably one of the best marketing strategies to hit the music industry in a long time…if your music is good. Mind you, the music industry shows us time and time again that they’re all about squeezing as much money out of the consumer as possible, not actually trying to sell their product. The Canadian music industry seems much more content trying to use taxes, levies and tariff’s to supplement their income rather that actually trying to sell their music.

    Another good reason I support almost exclusively European music.

  15. Sigh
    It’s clear enough that no matter what the bill actually allows or not, legally, the big fuss is over the following:

    “Education use is fair dealing now? awesome. Let’s copy entire books for free and pass them around.”

    This is not allowed in law, with or without the changes to fair dealing. CRIA and company are scared shitless that countless people will jump to the above conclusion and break the law due to the new designation.

    I will admit it, it’s somewhat of a valid fear to have. But laws should not be written around stupid fears like this. Not now, not ever.

  16. James Plotkin says:

    but it won’t happen
    Like I said before, fair dealing would never allow the unrestricted copying of entire works in the manner suggested above.

    There’s no way the SCC will buy into such a fear mongering argument. I certainly hope that the CIRA’s arguments are a little more profound than that or I fear that like Access Copyright, their members will spend more on litigation and legal fees than any possible pecuniary benefit that could result from this ruling. It’s just not profitable.

  17. Mr. Plotkin,

    I believe you are conflating regular artistic use of fair dealing and unpermitted sampling. Quotation, reference and homage are essential parts of much professional creation. The line between that and infringement is pretty bright and obvious, I think. Just as the line between fair dealing in the classroom and wholesale infringement should be bright and obvious, but it has been made awfully grey and indistinct by the poor-faith lobbying of free-culture theorists.

  18. @Crockett & @Bob
    …”publishers will find ways to end-run the whole user-rights nonsense by setting terms that capture upfront the revenue they see as lost”

    This sounds like a predictable, and rational, response. There is the little issue of “sticker shock” that will arise if that happens. The above approach might be an eye opener, for both publisher and customer. It moves it to a completely new arena.

  19. @Degen “The OECD clearly heard opinions from all over the map”

    Did they? If the major voices represented by the CSISAC were not incorporated into the final Communiqué were they truly heard or just ignored.

    If it were reversed and the voices of the content industries were ignored would you be as supportive of the outcome?

  20. @Crockett
    More important, you wouldn’t have a content industry. Very few business models survive, and very few new models emerge, when the product can be taken without permission or payment. Sure, in higher education, you could move to an open access model because most of the authors already get generous salaries for writing and research – although I seriously doubt that they’d take that as extending to writing full-length texts. In other fields, people will look for other ways to make a living. Putting this another way, user rights are predicated on someone else producign what the user wants for free.

  21. @Bob
    That presumes that the user won’t pay for things at all. There is definitely enough new ways to do things that are successful (Steam, Kindle/Kobo (as per John’s suggestion), NetFlix, etc) that are reducing the amount of piracy in the world because it’s giving people what they want at a price they feel is reasonable. Overly strict copyright laws on the content creator/publisher side are not going to protect the content industry, new ways of dealing with the customers is. Now this will have growing pains and there are going to be some people who end up not being able to keep going, but the industry itself will survive this like it has every other new technological wave that was suppose to have killed them off.

  22. @Bob
    That presumes that people won’t pay for things if the content industry can figure out how to get things to customers in the way that customers want. Things like Netflix, the (using an example John gave) Kindle/Kobo, Steam, etc. are working better to reduce people trying to get things “for free” than overly strict laws have done. There has always been a group of people who want to get stuff for free, and there always will be. That does not point to people not wanting to pay for things in general, they just want what they pay for to be something they consider reasonable. Of course, not everyone will survive the transition to new ways to dealing with customers, but stricter laws are not the answer.

  23. Hm…double post. Sorry. Wish that this site gave more indication when something went through.

  24. $12
    Ahhhh, another of my $12/mo music allotment spent on more European music, though I almost forgot to use it. This time it was “Edenbridge” from Austria and “Lyriel” from Germany. Last month it was “Coronatus”, also from Germany and “Legenda Aurea” from Switzerland.

    Slightly less than $24 for four and a half albums that would have cost me more than that each 15 years ago because they would have been imports!!! I LOVE the Internet!!!

    I feel sorry for our musicians when they have dinosaurs like the CRIA and SOCAN running the ship.

  25. Kristofor says:

    The fashion industry seems to be doing just fine without copywrite protection. So is the cooking industry and all sorts of other “content industries”.

  26. @ Doug Webb
    User generated content may land one in jail in the US soon. How long before it will in Canada?

  27. I find that point 5 interesting:
    “The Nature of the Work”, regarding if the work isn’t published. It seems that it would be fair dealing to translate and publish a foreign language work (music,movie,comic,game) that was restricted by territorial locks if the publisher had no intention of publishing it in the country. Even if the lock didn’t exist, the language barrier itself might be too expensive for the publisher deal with Canada or any other country and not sell physical or digital copies here.

    So it would appear that it would be fair dealing until such time a (Canadian) publisher takes an interest in the property, and continuing after being licensed here would be infringement unless it qualifies as parody, satire or education.

  28. Technology and the Market
    At some point, shouldn’t our right-leaning government recognize that technology from other market niches have significantly undermined the value of the media market, just like is supposed to happen in an open, competitive market? Why is it, that the moment the general market begins behaving the way it is supposed to, we suddenly have a call to revert to this privately-managed, supplier-controlled market niche? I’m quite sure we did not vote Conservative because we wanted tighter market controls. Hey, it’s a bitch that the internet has rendered, say, the home entertainment market virtually worthless over the past two decades, but that is supposed to happen in a healthy market. Someone will step up and fill whatever void is left behind, leveraging the new production & distribution models that killed old skool media.

    Here’s my take (again) : If you don’t like what citizens are doing with the product you sell, don’t sell it to them. Bring your customers into your own controlled environment, provide access to your product there, and only there. If you want me to buy it and take it home, I am entitled to do whatever the hell I want to do with it. You don’t get control in my home.

  29. I wonder if things go the way the CRIA wants them to, whether artists will lose control over their online profiles. Over the course of a few years, artists with member CRIA labels are getting increasingly pissed off at their labels for taking down their own content through social media like youtube, myspace, facebook.

    Drake about a week ago gave Universal a piece of his mind when he threw some of his new tunes out to some bloggers and they were taken down.

    A good question to ask here: Would it be considered fair dealing if the CRIA gets its way for a band to post their own tunes on their social profiles? As it stands artists have to get permission from their labels to do so, and even when permission is given, works are still taken down. I’d personally like to see fair dealing rights expanded on the artists own works.

  30. Favourite Line
    Favourite line: “copyright holders normally extract economic value”

    Extract, eh?

  31. Chris Brand says:

    “cause an unreasonable loss”
    Interesting choice of words. Aren’t losses dependent on expenditures and income ? So as long as you have a reasonable idea of what uses can be monetized and which ones would fall under fair dealing, any “losses” are entirely the result of the amount you invest.
    Losses, then, would be influenced by fair dealing (more generous fair dealing would mean that you’d have to be more careful to avoid losses), but could never be caused by it.

  32. Matthew Thomas says:

    “users” is a little misleading
    I’m always amused by how the “industry” (labels, publishers, networks, etc.) talk of fair dealing as protecting users rights. Perhaps it does but it’s in the interest of society in general to protect these “users” rights. Allowing content to be used in socially productive and beneficial ways is in the interest of EVERYONE: users, creators, copyright holders, distributors, etc.