Has Canada Effectively Shifted from Fair Dealing to Fair Use?

The reverberations from yesterday’s Supreme Court of Canada copyright decisions will be felt for years (good coverage of the decisions include posts from Mark Hayes, IP Osgoode, Barry Sookman, Howard Knopf, the Toronto Star, and the CBC). While much of the coverage has focused on the music downloading issue, the continued expansion of fair dealing is perhaps the most significant development.

I focused on the court’s expansive view of fair dealing in an earlier post, but I think it is worth digging a bit deeper to ask whether Canada has now effectively shifted from fair dealing to fair use. The Copyright Act obviously still speaks of fair dealing, but the expansion by the courts and the legislature may have effectively rendered it very close to fair use.

Under a fair use system (such as that found in the U.S. or Israel), the list of qualifying categories or purposes is illustrative rather than exhaustive. In other words, the statute identifies purposes that may qualify as fair use, but acknowledges that the courts may add new purposes as they see fit. The key to fair use therefore lies not in the purposes – virtually any copying can qualify – but rather in the analysis that follows over whether the particular use is fair. The flexibility of fair use has been lauded as one of its great benefits, opening the door to new innovation that politicians might not envision when drafting the law.

By contrast, fair dealing involves a two-stage analysis. First, the dealing must qualify for one of the enumerated fair dealing purposes. Assuming it meets part one, the second stage involves an analysis of whether the dealing itself is fair. In Canada, this involves a six-factor test that was responsible for much of the analysis in yesterday’s decisions.

While the law still involves the two-stage analysis, the first stage has become so easy to meet that Canada appears to be inching closer to fair use. There are four developments responsible for the shift. First, 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.

Second, the expansive approach articulated by the court means that the existing purposes are increasingly likely to capture a broader range activities. For example, in yesterday’s Access Copyright case, the majority treated instruction (ie. teaching) as within the research and private study categories, concluding that such activities facilitate students’ research and private study. Moreover, the court reframed private study as personal study that can take place anywhere or with anyone.

The court went even further in the song previews case, adopting a large and liberal interpretation to research. The key quote – likely to used by many others in the years ahead:

Limiting research to creative purposes would also run counter to the ordinary meaning of “research”, which can include many activities that do not demand the establishment of new facts or conclusions. It can be piecemeal, informal, exploratory, or confirmatory. It can in fact be undertaken for no purpose except personal interest. It is true that research can be for the purpose of reaching new conclusions, but this should be seen as only one, not the primary component of the definitional framework.

This covers an exceptionally wide range of activities in both commercial and non-commercial realms. With this decision, qualifying as research under fair dealing requires little more than a personal interest in the issue or work.

Third, having adopted an expansive approach to the fair dealing purposes (and the government having added new purposes that will be subject to similar expansive analysis such that education will likely cover a very broad range of activities with any education component), the court yesterday added another wrinkle to the fair dealing test, stating that the first part of the fair dealing test 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 part as having a low threshold, though a broad and liberal interpretation may lead to that conclusion. 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 the fair use approach.

Fourth, 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 has been expanded considerably in the Access Copyright 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 Access Copyright case, the teacher is technically making the copy on behalf of the student, but the court found that their purposes are inseparable, noting that “the 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 in a submission written by Barry Sookman:

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 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 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 these views and has now rendered three decisions where the intermediary copier stands in the shoes of the beneficiary – CCH (library copying for patron), Access Copyright (teacher copying for student), and song previews (Apple making 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 U.S. 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. That is consistent with a copyright system that balances creator rights and user rights, since the core fairness concern is whether the use or dealing with a work is fair, not whether it fits within one of the fair dealing categories or purposes.


  1. Mark Jordan says:

    Broadened of the first stage test as applied to organizations that digitize material for public access
    I think a broadened first stage fair dealing test, and the “lowering of its threshold”, may lessen the risk for Canadian libraries, archives, and other organizations that digitize material to make it available for public use. The second stage tests would apply to the end user. This is consistent with interpretations of the US fair use.

  2. However, Rothstein in his dissent does have a point when he says that courts do have to have some regard from the actual words of a statute. If Parliament opts for fair dealing, is it really the role of the SCC to substitute for fair use? It’s easy to go along with what the SCC did yesterday, but if we accept that they have this latitude, it will be difficult to complain when they use in a different context we don’t like. If Canada is to have fair use, then the Copyright Act should be the vehicle for its introduction.

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  4. It’s also consisten in another way in that it’s completely overridden and nullified by drm.

  5. Now we need someone like Geist, Knopf or ??? to take the digital lock issue to the SCC to rule on the federal/provincial property jurisdictional question. Maybe we could start a fund on 😀

  6. DVDs? Fair use?
    Is is legal to rip a DVD for personal use? Or is the stupidly weak DRM preventing us to legally do that?

  7. editor
    so does it mean that all copying in Canada for education purposes are legal now?