Michael Geist

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).

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