The Arithmetic of Fair Dealing at the Supreme Court of Canada

In the 2012 Supreme Court of Canada copyright cases, the Court found an opportunity to redefine the law of fair dealing in Canada. While the Court acknowledged that fair dealing is a question of fact, and thereby properly adjudicated by triers of fact like the Copyright Board of Canada, the Court stepped in to revisit the facts all over again. When compared to its common law counterparts like the UK and the US, Canada stands alone in its willingness to rehear fair dealing cases, which are a matter of first impression.[2]

I argue that while it is salutary to re-emphasize the existence of users’ rights as per CCH v Law Society of Upper Canada [CCH], and indeed that these rights are here to stay, it cannot be beneficial for the Court to reinterpret the facts, which is the job of courts and tribunals of first instance, or to make policy, which is the job of government; here, unfortunately, the Court indulged in both. In its reasoning, the Supreme Court of Canada showcases rigid reliance on CCH’s six-factor framework and elevates the framework to the level of law.[3] Ironically, in doing so, the Supreme Court of Canada is actually going against the spirit and the benefit that CCH created for copyright law in Canada and, more specifically, for fair dealing.

Fair Dealing and the Copyright Pentalogy

The Supreme Court of Canada released five copyright cases, commonly referred to as the copyright pentalogy, on the same day in July 2012, setting abuzz all circles in the legal community and beyond. Many fundamental copyright issues were raised: delineating the scope of various rights and the overlapping nature of rights in the Copyright Act, technological neutrality, questions of payment and, more broadly, appropriate standards of review, as each of these cases originated from the Federal Court of Appeal’s judicial review of the Copyright Board of Canada decisions. Among the five cases, two dealt squarely with the doctrine of fair dealing: within certain limits, what a user can do with a substantial part of a copyright work without permission of the owner.[4]

In Canada, the doctrine of fair dealing is statutorily entrenched in the Copyright Act. As a result of the recently enacted Copyright Modernization Act, there are now five allowable purposes for fair dealing: (1) research or private study (s. 29); (2) criticism or review (s. 29.1); (3) news reporting (s. 29.2); (4) parody or satire (s. 29); and (5) education (s. 29).[5] Fair dealing is a question of fact and a matter of first impression.[6] The onus is on the defendant to prove that the dealing (1) fits within one of the enumerated allowable purposes; (2) is “fair”; and (3) for “criticism or review” and “news reporting”, sufficient acknowledgement is given. In CCH, a unanimous Supreme Court of Canada ruled that fair dealing, alongside the other exceptions in the Copyright Act, “must not be interpreted restrictively”[7] and that more or less six factors may be used when assessing fairness.[8] In that case, the Law Society of Upper Canada did not infringe copyright, because its Great Library request-based reproduction services fell squarely within the allowances of the fair dealing doctrine. Lawyers carrying on the business of law for profit were held to be conducting noninfringing research. Research should be accorded a “large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.”[9]

In SOCAN v Bell [Bell], Abella J for a unanimous court agreed with the Board that song previews provided by Internet service providers for consumers constituted fair dealing for the purposes of research and thus were not subject to a tariff. Consistent with the spirit of CCH, the term “research” should be given a “large and liberal interpretation”. For the Court, it would be far too restrictive to limit “research” to its ordinary meaning, as it 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 be undertaken for no purpose except personal interest.”[10]

On the other hand, Alberta (Education) was a heavily contentious case, with a 5-4 split decision over the appropriate deference afforded to the Board and the interpretation of fair dealing. At issue was whether copies made at the teacher’s initiative in Kindergarten to Grade 12 classrooms and provided to students with instructions to read the material were made for the allowable purpose of research or private study.[11] While the matter was sent back to the Copyright Board for reconsideration, the Board later ruled that the copying at issue was fair dealing.[12] For Abella J’s majority, the Board misinterpreted the six fair dealing factors. For Rothstein J’s dissent, the six factors are not statutory enactments; fair dealing is a question of fact, and deference should be accorded to the Board. In both cases, the Court seized the opportunity to clarify the interpretive framework set out in CCH.[13]

In Bell, Abella J clarified that a generous, “low-threshold” interpretation should occur for the first part of the test, with respect to determining the allowable purposes, “so that the analytical heavyhitting is done in determining whether the dealing was fair.”[14] While the Court is quite liberal in the first part of the test—some would say too liberal[15]—it is ironically rigid in the fairness analysis.

What follows is a discussion of the Court’s enthusiasm to rehear facts when it does not agree with the outcome, in specific reference to (1) an emerging user perspective test the Court used for determining both the allowable purpose to warrant fair dealing and the first fairness factor (i.e. the purpose of the dealing), and (2) the Court’s general approach to determine fairness: by methodically examining each of the six fairness factors proposed in CCH. I will tackle the latter first, as I find this development the most troubling.

Featured here is the first part of a book chapter written by Giuseppina D’Agostino, Founder and Director of IP Osgoode, the Founder and Director of the IP Intensive Program, and an Associate Professor at Osgoode Hall Law School. The full chapter is available for download here. The book is entitled “The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law” edited by Michael Geist, and is available for purchase or download here.