Today Public Knowledge is sponsoring World's Fair Use Day, described as a day to celebrate the doctrine of fair use and the benefits it brings to creators, innovators, and consumers. As many readers will know, Canada does not have a fair use provision but rather one called fair dealing. Given the focus on fair use, it is worth considering both the breadth of fair dealing in Canada as well as its limits. For those supportive of fair dealing, the good news is that the Supreme Court of Canada has ruled that it is a user right. In CCH Canadian v. Law Society of Upper Canada, a unanimous court ruled:
Before reviewing the scope of the fair dealing exception under the Copyright Act, it is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, 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.
