The Beginnings of Fair Dealing

The history of fair dealing can be traced back to an equitable doctrine that developed in the courts of the United Kingdom in the 19th century. The judge-made fair use doctrine was codified in the United Kingdom in 1911⁵ and in Canada ten years later.⁶ The statutory fair dealing provisions in the UK and Canada set out a closed list of permitted purposes: criticism and review, private study and research, and newspaper summary. These enumerated purposes were then interpreted narrowly by the courts as limiting the availability of fair dealing, while “fairness” was also strictly construed. The development of fair dealing in the 20th century explains the general perception that Canadian fair dealing is more limited than its open-ended U.S. counterpart, fair use, which continued to evolve without being statutorily restricted to specific purposes.

Fair Dealing as a User Right

The fate of fair dealing changed dramatically in Canada with the 2004 ruling of the Supreme Court in CCH Ltd. v. Law Society of Upper Canada.⁷ In this case, which concerned copies of legal materials made by librarians for their patrons, the Supreme Court of Canada rejected the notion that fair dealing should be strictly construed. Instead, it recognized fair dealing as a positive right of users to be balanced against the rights of copyright owners:

[T]he 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.… “User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.”⁸

The Court went on to state that fair dealing purposes “must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained.”⁹ Notably, the broad interpretation of research allowed the defendant to claim that the Library’s copying practices were “research-based and fair” when copying was done on behalf of the patrons as end-users.¹⁰

Importantly, the Court also set out factors for consideration in assessing the fairness of a use: “the purpose of the dealing, the character of the dealing, the amount of the dealing, the nature of the work, available alternatives to the dealing, and the effect of the dealing on the work.”¹¹

The Copyright Pentalogy

Another important development in Canada’s fair dealing doctrine was the collection of cases dubbed the “Copyright Pentalogy”: five rulings issued by the Supreme Court of Canada in 2012.

Most notably for OER makers, in the Alberta (Education) v. Access Copyright¹² case, classroom copies made by schoolteachers for their students were included within a “large and liberal” reading of research and private study. The students’ purpose was understood to be private study even in a classroom setting: “Studying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude.”¹³ The Court explained: “the teacher’s purpose in providing copies is to enable the students to have the material they need for the purpose of studying. The teacher/copier therefore shares a symbiotic purpose with the student/user who is engaging in research or private study.”¹⁴ Recognizing that the teachers had no “ulterior motive” when providing copies to students, the purpose of facilitating students’ studying brought them within the scope of fair dealing.

Also important was SOCAN v. Bell Canada,¹⁵ in which the streaming of music samples was found to be fair dealing for the purpose of assisting consumers’ “research.” Justice Abella stressed that research need not be for creative purposes but “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 in fact be undertaken for no purpose except personal interest.” She also explained: “In mandating a generous interpretation of the fair dealing purposes, including “research”, the Court in CCH created a relatively low threshold for the first step so that the analytical heavy-hitting is done in determining whether the dealing was fair.”¹⁶

These cases reinforced the lessons from CCH: Canada’s statutory fair dealing purposes should be liberally construed; facilitating an end-user’s (e.g., student) fair dealing can bring the copier (e.g., OER creator) within the scope of the relevant purpose; and most importantly, fair dealing is a user right. More broadly, they confirmed the importance of fair dealing in Canada’s copyright system. In the words of Justice Abella:

[U]sers’ rights are an essential part of furthering the public interest objectives of the Copyright Act. One of the tools employed to achieve the proper balance between protection and access in the Act is the concept of fair dealing, which allows users to engage in some activities that might otherwise amount to copyright infringement. In order to maintain the proper balance between these interests, the fair dealing provision “must not be interpreted restrictively.”¹⁷

The 2012 Copyright Modernization Act

2012 also saw the enactment of revisions to Canada’s Copyright Act that expanded the potential reach of fair dealing by adding to the list of enumerated purposes. In addition to criticism and review, research and private study, and news reporting, fair dealing is now permitted for the purposes of “education, parody or satire.”¹⁸

The addition of “education” as an enumerated purpose is particularly worthy of note. Under the Alberta case, facilitating students’ studying could potentially bring a copier within the scope of fair dealing where their purposes were “symbiotic” and without “ulterior motive.” With the inclusion of “education” as a separate purpose, however, it is no longer necessary for the copier—the maker of educational materials—to step into the shoes of the student: individuals who make copies for the purposes of educating others are themselves engaged in copying for permitted fair dealing purposes. It only remains necessary to establish that their dealing is “fair.”

The 2012 amendments also saw the enactment of a non-commercial user-generated content (UGC) exception, as well as new exceptions for educational institutions. The potential applicability of some of these exceptions to OER creations is discussed in Appendix Two.

Reaffirming Fair Dealing in Higher Education

At the time of writing, the most recent Supreme Court case impacting the use of fair dealing in an educational setting was York University v. Canadian Copyright Licensing Agency (Access Copyright).¹⁹ Although primarily concerning the notion of tariff enforceability, in their unanimous verdict, Justice Abella noted that lower courts erred in their fair dealing analysis of copying for the purpose of sharing materials with students by “leaving out the perspective of the students who use the materials.”²⁰ Abella confirmed that “The purpose of copying conducted by university teachers for student use is for the student’s education.”²¹ Additionally, the Supreme Court found that the lower court erred by considering aggregate amount of copying instead of the copying made on each student’s behalf:

[T]he trial judge’s criticism of York’s Guidelines on the basis that different portions of a single work could be distributed to different students, such that an author’s entire work could end up being distributed in the aggregate, is also contradicted by SOCAN, which held that “[s]ince fair dealing is a ‘user’s’ right, the ‘amount of the dealing’ factor should be assessed based on the individual use, not the amount of the dealing in the aggregate.”²²

The decision reaffirms that the Supreme Court remains strongly supportive of users’ rights and serves as encouragement to users that the law in Canada continues to promote a large and liberal interpretation of fair dealing. More specifically, in the educational context, the York University case expressly confirms that students have a “right to receive course material for educational purposes in a fair manner.”²³ Institutional and instructional practices that actualize this right (including the making and distribution of copies as educational resources) are therefore “consistent with the underlying balance between users’ rights and creators’ rights in the Act.”²⁴

Two-Step Test for Determining Fair Dealing

CCH Ltd. v. Law Society of Upper Canada set out a two-step test to help users make fair dealing determinations. The first step was to confirm that the dealing was for one of the enumerated fair dealing purposes set out in the Copyright Act, which include research, private study, education, parody, satire, criticism, review, or news reporting. Only if a use falls into one of these purposes may a user proceed onto the second step of the test, which sets out a list of six factors to consider when determining the fairness of any potential use case:

• The purpose of the dealing
• The character of the dealing
• The amount of the dealing
• The nature of the work
• Available alternatives to the dealing
• The effect of the dealing on the work

Importantly, when relying on these factors to make a fair dealing determination, the court in CCH notes that not all considerations will arise in every case of fair dealing, but that they should be considered to provide a “useful analytical framework to govern determinations of fairness.”²⁵ Additionally, in several copyright cases, the Supreme Court has demonstrated the importance of considering all relevant factors, clarifying that fairness determinations should be made on balance of the fairness of each factor assessed in combination. Individual factors are not generally understood to be determinative of fairness but nor is the assessment simply a matter of calculating how many factors weigh for or against fairness. Rather, the multifactorial test is meant to guide a holistic assessment of the fairness of the dealing in the relevant circumstances.

1. Purpose

The Court has clarified on several occasions (SOCAN, Alberta (Education), York) that as a users’ right, it is appropriate to view the fair dealing purpose from the perspective of the end user regardless of whether that end user is the person making the copies. In cases of copying undertaken by teachers on behalf of their students, the Court has further clarified that there is typically no separate purpose on the part of a teacher: “When teaching staff at a university make copies for their students’ education, they are not “hid[ing] behind the shield of the user’s allowable purpose in order to engage in a separate purpose that tends to make the dealing unfair.”²⁶

Much like the first step, this factor in the fairness analysis considers the purpose of the dealing. However, the stage two purpose involves a more nuanced and considered analysis of the fairness of the use in light of the real purpose and genuine motivations of the user. An ulterior commercial or time-saving motive, for example, may weigh against fair dealing while a genuine pedagogical purpose will weigh in its favour.

 2. Character

As set out in CCH, the character of the dealing primarily examines how works are dealt with. Considerations include, for example, the aggregate number of copies made, the scale of distribution, whether or not copies are destroyed after use, etc.²⁷ In the educational context, this factor is often invoked to consider the total number of copies of a work made by an instructor or institution on behalf of students and how the copies were distributed. It would typically weigh in favour of fairness, for example, if a copy is posted on a site accessible only to enrolled students for the duration of a course.

In SOCAN, and later reiterated in York, the Supreme Court cautioned against assuming that “large-scale organized dealings” were inherently unfair. It specifically warned that “where copies could easily be distributed across the internet in large numbers” courts should not unduly focus on the aggregate amount of dealing, as it may “lead to disproportionate findings of unfairness when compared with non-digital works.”²⁸ In the educational context, such an assumption could also unfairly disadvantage larger educational institutions or students in larger classes.

3. Amount

The amount of the dealing is primarily concerned with the amount of a work copied in relation to the whole and in light of the purpose of the dealing. As CCH makes clear, there is no determinative amount or proportion of a work that may or may not be copied. If the amount copied is insubstantial, however, a fair dealing analysis is unnecessary, as copyright law permits the copying of less than a substantial part of a work.

Where a substantial part of a work is copied, users must consider the portion used both qualitatively and quantitatively to assess the fairness of the amount used in light of the user’s purpose. It may be fair to copy an entire work and depending on the type of work, it may be necessary to do so in order to achieve the relevant fair dealing purpose:

For example, for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision. However, if a work of literature is copied for the purpose of criticism, it will not likely be fair to include a full copy of the work in the critique.²⁹

4. Alternatives

Alternatives to the dealing may be relevant if non-copyrighted equivalents are available and could realistically be used without disrupting the relevant fair dealing purpose.³⁰ If use of the copied work was reasonably necessary to achieve a pedagogical purpose, for example, this will weigh in favour of fairness. If materials would have been “equally effective” without copying the work, this may weigh against fairness. When considering whether an alternative is realistic in the educational context, the Court in Alberta (Education), notes that “buying books for each student is not a realistic alternative to teachers copying short excerpts to supplement student textbooks….Copying short excerpts, as a result, is reasonably necessary to achieve the ultimate purpose of the students’ research and private study.”³¹

CCH also explicitly states that the availability of a licence to purchase the work is “not relevant to deciding whether a dealing has been fair.”³² If a dealing is fair, of course, no licence is needed.

5. Nature

The nature of the work considers a work’s intended audience and distribution, particularly as it relates to its publication status. In CCH, the court noted that if a work had not been previously published it may be more fair to reproduce it, as such reproduction could lead to a “wider public dissemination of the work — one of the goals of copyright law.”³³ Interestingly, this interpretation departs from UK and U.S. case law, where they have found that an author’s right to control the dissemination of their work, in this case to allow it to remain unpublished, outweighed a public good in broad distribution.

Case law in the U.S. also suggests that the nature of the work is relevant because certain works are “closer to the core of intended copyright protection than others.”³⁴ It may be more fair to use an informational work like a news broadcast, scientific article, or biography, for example, than to copy an expressive work like a movie or novel. In an educational context, the nature of the work used should be assessed in light of the pedagogical purpose.

6. Effect

The effect of the dealing on the work asks users to consider whether their use will “compete with the market for the original work.”³⁵ If their use will compete with or replace demand for the original, this may lead towards unfairness. Uses that do not substitute for the original work in the market are more likely to be fair (even if they harm demand for the original in a different way such as by mounting a compelling critique).

In Alberta (Education), the court addressed this factor in relation to educational copying from textbooks, noting that while the market for textbook sales had shrunk over time, “there were several other factors that were likely to have contributed to the decline in sales, such as the adoption of semester teaching, a decrease in registrations, the longer lifespan of textbooks, increased use of the Internet and other electronic tools, and more resource-based learning.”³⁶ Here, the court affirmed that the applicability of the market substitute factor must be directly related to the dealing in question.

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Footnotes