Does Canada already have fair use?

It is well accepted that Canada’s Copyright Act permits certain fair dealings with works.These dealings, known as allowable purposes, permit fair copying and other dealings for the purposes of research, private study, criticism, review, and news reporting, if certain conditions associated with the exceptions are met. These fair dealing exceptions operate differently from “fair use” in the United States. In that country the allowable purposes listed in the U.S. Copyright Act are non-exclusive, leaving it open to the courts to determine on a case by case basis whether a particular dealing is allowable and fair.

For the reasons expressed in a blog last week, I believe that there are many problems with fair use. I therefore expressed the opinion that we should reject Charlie Angus’ proposal to adopt it.

Last week Howard Knopf, a well known copyright users rights lawyer, wrote a blog supporting Mr. Angus’ proposal to amend the Copyright Act to introduce a fair use system. What is interesting about the post is not Mr. Knopf’s support for the amendment. Mr. Knopf has previously called for the same amendment. For example, in his submission to the copyright consultations last September, Mr. Knopf suggested that “The fair dealing provisions should be simplified by making them clearly an inclusive and illustrative list and not exhaustive”. In other words, we don’t have fair use and should have it.

What is interesting is that Mr. Knopf is now categorically contending that we already have a fair use system and that Mr. Angus’ proposal would simply codify existing law. Mr. Knopf states:

“Mr. Angus’ approach is completely consistent with the landmark decision of the 2004 Supreme Court of Canada in CCH v. LSUC. Indeed, it may do nothing more than to codify it.”

Of course, if we already had a fair use model in Canada, there would be no need to amend the law to give us one and Mr Knopf would not have needed to ask for this amendment in his copyright submission. But, we don’t have such a model and the CCH v LSUC case relied upon by Mr Knopf actually confirms this. In its ruling the Supreme Court stated:

“In order to show that a dealing was fair under s. 29 of the Copyright Act, a defendant must prove: (1) that the dealing was for the purpose of either research or private study and (2) that it was fair.” para 50

“In Canada, the purpose of the dealing will be fair if it is for one of the allowable purposes under the Copyright Act, namely research, private study, criticism, review or news reporting: see ss. 29, 29.1 and 29.2 of the Copyright Act…Moreover, as the Court of Appeal explained, some dealings, even if for an allowable purpose, may be more or less fair than others; research done for commercial purposes may not be as fair as research done for charitable purposes.” para 54

The Federal Court of Appeal in the CCH case, whose decision on this particular point was not criticized by the Supreme Court, also clearly stated that the Canadian and US systems are different and that Canada does not have a fair use system:

“The first task is to define the scope of each allowable purpose under section 29 in order to determine whether the Law Society’s activities might fall within that scope. Importantly, the categories of allowable purposes under our Act are closed, unlike under the American doctrine of fair use (see 17 U.S.C. § 107 (1994)). If the purpose of the dealing is not one that is expressly mentioned in the Act, this Court is powerless to apply the fair dealing exemptions. If the purpose of a dealing is an allowable purpose, this Court may then embark upon a separate, but related investigation as to the fairness of that dealing.” para. 127

Of course, these aren’t the only cases which have held this to be the case. There are numerous cases which have held this to be the law before the CCH case. A recent Federal Court case decided after CCH, Drolet v. Stiftung, confirms that the law has not changed. According to the court:

“What of the defence of fair dealing? The plaintiff tried to rely on section 29 of the Act by claiming that his sole aim was to do justice to the author by reproducing his true work. He also submitted that his good faith was evident from the fact that he had published his work under the author’s name, or rather his pseudonym (Abdrushin), and that he had never tried to claim it as his own. In short, his intention was utterly disinterested and he sought only to spread the author’s true thought. The only exceptions are for the approved purposes and not dealings which might be fair for some other purpose or fair in general.” para 262

“Unfortunately, good faith is not a relevant test for determining whether the fair dealing exception applies. As the Supreme Court stated in CCH Canadian Ltd. v. Law Society of Upper Canada, supra (at paragraph 50), the person claiming the benefit of this exception must prove (1) that the dealing was for the purpose of either research or private study and (2) that it was fair.” para. 263

What makes Mr. Knopf’s claim about Canadian law even more interesting, is that he takes a position much different from the other main proponents of amending Canada’s fair dealing laws.

For example, Prof. Geist also advocates changing Canadian law. He argues a change is needed by starting from the accepted position that the law needs changing because we don’t have fair use. Prof. Geist’s submission to the copyright consultation made this point:

“Led by the United States, several countries around the world have established fair use provisions within their copyright laws (Israel being the most recent)…The Supreme Court of Canada has already ruled that Canada‘s fair dealing provision must be interpreted in a broad and liberal manner. Yet the law currently includes a limited number of categories (research, private study, criticism, news reporting, and review)…”.

Another vocal advocate for copyright reform is Prof. Samuel Trosow. (Prof. Trosow is also a representative of Mr Knopf’s client, the CAUT, which intervened in the K-K12 educational judicial review from the Copyright Board to argue, among other things, that Canada already has fair use.) Prof. Trosow made the exact same point as Prof. Geist in his submission to the copyright consultations arguing that the existing law needs to be amended because we have fair dealing and not fair use:

“Section 29 of the Act provides that ―fair dealing for the purpose of research or private study does not infringe copyright. Section 29.1 and 29.2 similarly provide that fair dealing for purposes of criticism or review and news reporting does not infringe copyright if the source and name of the author (or performer, maker or broadcaster) is given. Fair dealing in Canada is therefore categorical; one must first come within one of the categories listed in the Act in order to invoke fair dealing. And assuming you have invoked one of these categories, the Act is silent as to the actual criteria to use in determining whether or not the use is indeed fair. You have to look to the case law for guidance.

This state of affairs runs counter to popular belief; people often talk about fair dealing by noting that they have not used very much of the source, that the original work was transformed to a great extent, or that the use was not commercial in nature. While these types of factors are relevant for assessing whether a particular use was ―fair, under a strict interpretation of the Canadian Act they only come into play if the use fits within one of the five enumerated categories. Some of this popular confusion comes from the difference between American ―fair use and Canadian ―fair dealing. In contrast to Canada‘s categorical requirement, U.S. fair-use is open-ended, that is, you do not have to fit into a stated category, you go right to the assessment of whether or not the use was fair under the circumstances.”

So who is right? Mr Knopf, or Professors Geist and Trosow?

We should be under no illusion. The proposals being made to enact fair use in Canada are not merely the codification of existing law and they cannot be justified on any such basis.

And oh, with respect to Mr Knopf’s comments about “moral panics” and the ills of fair use, my blog repeated the well known criticisms about fair use, which were previously identified by the governments of Canada, UK, New Zealand, and Australia when they last studied and rejected fair use and by other commentators. If describing the ills of fair use has now been elevated to a “moral panic”, then I am in good company together with the 50 organizations who filed the Joint Submission and the hundreds of thousands of Canadian working creators they represent, the governments which rejected fair use and told us why, and the numerous others who hold similar opinions.