As Meera Nair noted last week, today marks the tenth anniversary the Supreme Court of Canada’s landmark CCH Canadian v. Law Society of Upper Canada. A decade after its release, the case has grown in stature as the leading the users’ rights copyright decision by a high court in the world. Writing for a unanimous court, Chief Justice McLachlin stated:
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.’
The articulation of fair dealing as a users’ right represented a remarkable shift, emphasizing the need for a copyright balance between the rights of creators and the rights of users. While this approach unquestionably strengthened fair dealing, the immediate reaction to the CCH was somewhat mixed.