More Fickle than Fair: Why Canada Should Not Adopt A Fair Use Regime

Article from The Lawyers Weekly. November 20, 2009, by Barry Sookman and Dan Glover

In July, the Canadian government launched a nationwide consultation on copyright modernization, asking Canadians what changes should be made to the Copyright Act to best foster innovation, creativity, competition and investment, and position Canada as a leader in the global, digital economy.

During this process, advocates of copyright liberalization have called to replace Canada’s longstanding fair dealing provisions with a general fair use provision. In Canada, fair dealing is a defence to an infringement claim that allows a person to use copyright fairly for certain identified purposes. In the United States, that person is able to contend that any use is fair.

As an alternative, these advocates have argued that Canada’s fair dealing provisions, such as the “research or private study” and the “criticism or review” provisions, should be treated as merely “illustrative” examples of allowable exceptions. This “expanded fair dealing” proposal would have a similar effect to implementing a fair use provision, as it would create an open-ended system allowing users to argue that any given purpose is  “fair”.

These proposed amendments are not needed. At a time when most stakeholders are calling for greater certainty and clarity in Canadian copyright law, these proposals to replace the specific fair dealing provisions that Parliament has established with broad, open-ended “user rights” would leave copyright owners and users guessing where copyright ends and “user rights” begin.

The fair use model is not a panacea for solving difficult problems resulting from digitization and the Internet.  “Fair use” has been described as an “astonishingly bad” system amounting to little more than “the right to hire a lawyer”.[1]

Fair use and/or expanded fair dealing systems are models that many of our trading partners, including the United Kingdom, the European Union, Australia and New Zealand, have expressly rejected.  So did Canada when it last considered introducing an expanded fair dealing or fair use provision into Canadian law.  In fact, of the 164 countries that are members of the Berne Convention, only four have implemented it.[2]

Far from solving copyright problems, adopting fair use would lead to uncertainty, expensive litigation and important public policy decisions made by courts instead of Parliament.  It would reduce revenues available to the Canadian creative industries, revenues which are vital to their indigenous growth.  It would undermine legitimate licensing models including collective licensing of copyrights.

By expanding what can be done without infringement, fair use could also significantly undercut the existing private copying levy as well as prospects for extending that levy to new media and to content other than music.  It would leave uncertain what uses of works are permissible in a variety of other settings as well, such as uses in libraries and educational institutions.

Adopting a fair use or expanded open ended fair dealing model could also put Canada off-side its treaty obligations, which require that Canada confine limitations or exceptions to certain special cases that do not conflict with a normal exploitation of a right or unreasonably prejudice the legitimate interests of authors or right holders.

Worldwide, the dominant approach in creating exceptions and limitations to copyright is a closed approach that identifies specific special uses of works that do not infringe copyright. The open ended model has been rejected or not adopted in almost every country or jurisdiction that has considered it. For example, the Australian government white paper “Fair Use and Other Copyright Exceptions” enumerated some of the model’s prominent defects, including:

  • The distinction between fair use and infringement is unclear.
  • The open-ended fair use exception is broader in scope than fair dealing exceptions.
  • The only way to find out definitively whether a particular use is a fair use is to have it resolved in a court.
  • Outcomes in fair use disputes are hard to predict and often overturned.
  • Copyright owners may vigorously oppose fair use claims to ensure that the doctrine does not expand by increments.

Careful consideration must also be given to how such a system would transfer to Canada. Canada’s copyright law which is considerably different from U.S copyright law. It is based on a different constitutional footing, and operates within a much different cultural setting.

Given all these factors, it is very uncertain that Canadian courts would adopt all of the principles derived from 150 years of U.S. case law or decide cases in the same way.

There is a significant groundswell of opinion in Canada defending the viability of the existing fair dealing model.. These issues were comprehensively reviewed in a consultation paper authored by us and jointly submitted by close to forty five prominent Canadian organizations representing hundreds of thousands of artists, choreographers, composers, directors, educators, illustrators, journalists, makers, musicians, performers, photographers, playwrights, producers, publishers, song writers, videographers, and writers working in Canada.

The consultation paper concludes that if new exceptions and limitations are warranted, Canada should take the road chosen overwhelmingly throughout the world. That approach is to make a careful, focussed study of the needs of Canadians for access to works that the market has not met or is unable to meet and decide on the best policy vehicles for meeting those needs. Where required, new exceptions should be based on the three-step test mandated by the treaties and conventions Canada has agreed to honour. A fair use model would meet none of these needs.

[1] Lawrence Lessig, Free Culture (2004) at 187.

[2] The only fair use regimes are the United States, Israel, Singapore, and the Philippines.

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3 thoughts on “More Fickle than Fair: Why Canada Should Not Adopt A Fair Use Regime”

  1. Dave Heal says:

    Why do you list the fact that fair use is broader in scope as a “prominent defect?” While you do talk about some of the reasons why you think fair dealing is a better system, providing the Australian white paper’s conclusions as standalone bullet item seems to indicate that you may think a broader exception is inherently worse than a more restrictive one, which isn’t a position that I understand. That indeterminacy is bad, at least in some obvious and non-controversial ways, I get. But opposition to a broad or liberal conception of fair use/dealing seems to require an explanation of “for whom.”

    Likewise the claim that fair use would result in less revenue to “the creative Canadian industries.” It may reduce revenues for some groups in some industries, but certainly you can’t foreclose the possibility that it would raise revenue for others. I doubt the various creators’ groups who are in favor of more liberal fair dealing agree that broader is self-evidently worse and is guaranteed to drive down revenues.

  2. Thank you for your comment.

    I think that the ‘fairness” factors in Canada and the U.S. are fairly even after the CCH case. In fact, it could be argued that the way the Supreme Court weighted the factors in CHH gives Canada a broader scope for finding something “fair in Canada”. I don’t take issue with a broad range of activities being subject to fair dealing, or that where appropriate, that exceptions be sufficiently broad. What I have trouble with is open ended exceptions where no one really knows what is permitted and what is not and where courts make such critical public policy decisions.. I don’t disagree with your comment that some exceptions will not reduce revenues, or reduce them significantly; some would, however. That’s why I believe each proposal for an exception has to be studied to determine the potential effect. That’s just what the UK did in its recent consultation. see my posting earlier today on this.

  3. Thank you for your comment. You perhaps don’t know that I have acted for both users and rights holders. Also, you may not know that my article was not produced for anyone for whom I have done any lobbying. So why would anyone expect ay kind of disclosure?

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