{"id":43,"date":"2024-01-22T15:16:05","date_gmt":"2024-01-22T20:16:05","guid":{"rendered":"https:\/\/pressbooks.library.torontomu.ca\/codeofbestpracticesinfairdealingoer\/back-matter\/appendix-one-fair-dealing-in-canada-history-and-evolution\/"},"modified":"2024-02-29T18:35:03","modified_gmt":"2024-02-29T23:35:03","slug":"appendix-one-fair-dealing-in-canada-history-and-evolution","status":"publish","type":"back-matter","link":"https:\/\/pressbooks.library.torontomu.ca\/codeofbestpracticesinfairdealingoer\/back-matter\/appendix-one-fair-dealing-in-canada-history-and-evolution\/","title":{"raw":"Appendix One: Fair Dealing in Canada \u2013 History and Evolution","rendered":"Appendix One: Fair Dealing in Canada \u2013 History and Evolution"},"content":{"raw":"
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<\/a>The Beginnings of Fair Dealing<\/h2>\r\n

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<\/a><\/sup> and in Canada ten years later.6<\/a><\/sup> 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 \u201cfairness\u201d 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.<\/p>\r\n\r\n

<\/a><\/a>Fair Dealing as a User Right<\/h1>\r\n

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<\/em>.7<\/a><\/sup> 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:<\/p>\r\n

[T]he fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act<\/em> 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<\/em>, is a user\u2019s right. In order to maintain the proper balance between the rights of a copyright owner and users\u2019 interests, it must not be interpreted restrictively.\u2026 \u201cUser rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.\u201d8<\/a><\/sup><\/p>\r\n

The Court went on to state that fair dealing purposes \u201cmust be given a large and liberal interpretation in order to ensure that users\u2019 rights are not unduly constrained.\u201d9<\/a><\/sup> Notably, the broad interpretation of research allowed the defendant to claim that the Library\u2019s copying practices were \u201cresearch-based and fair\u201d when copying was done on behalf of the patrons as end-users.10<\/a><\/sup><\/p>\r\n

Importantly, the Court also set out factors for consideration in assessing the fairness of a use: \u201cthe 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.\u201d11<\/a><\/sup><\/p>\r\n\r\n

<\/a><\/a>The Copyright Pentalogy<\/h1>\r\n

Another important development in Canada\u2019s fair dealing doctrine was the collection of cases dubbed the \u201cCopyright Pentalogy\u201d: five rulings issued by the Supreme Court of Canada in 2012.<\/p>\r\n

Most notably for OER makers, in the Alberta (Education) v. Access Copyright<\/em>12<\/a><\/em><\/sup> case, classroom copies made by schoolteachers for their students were included within a \u201clarge and liberal\u201d reading of research and private study. The students\u2019 purpose was understood to be private study even in a classroom setting: \u201cStudying and learning are essentially personal endeavours, whether they are engaged in with others or in solitude.\u201d13<\/a><\/sup> The Court explained: \u201cthe teacher\u2019s 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<\/em>\/user who is engaging in research or private study.\u201d14<\/a><\/sup> Recognizing that the teachers had no \u201culterior motive\u201d when providing copies to students, the purpose of facilitating students\u2019 studying brought them within the scope of fair dealing.<\/p>\r\n

Also important was SOCAN v. Bell Canada<\/em>,15<\/a><\/sup> in which the streaming of music samples was found to be fair dealing for the purpose of assisting consumers\u2019 \u201cresearch.\u201d Justice Abella stressed that research need not be for creative purposes but \u201ccan 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.\u201d She also explained: \u201cIn mandating a generous interpretation of the fair dealing purposes, including \u201cresearch\u201d, the Court in CCH<\/em> created a relatively low threshold for the first step so that the analytical heavy-hitting is done in determining whether the dealing was fair.\u201d16<\/a><\/sup><\/p>\r\n

These cases reinforced the lessons from CCH<\/em>: Canada\u2019s statutory fair dealing purposes should be liberally construed; facilitating an end-user\u2019s (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\u2019s copyright system. In the words of Justice Abella:<\/p>\r\n

[U]sers\u2019 rights are an essential part of furthering the public interest objectives of the Copyright Act.<\/em> 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 \u201cmust not be interpreted restrictively.\u201d17<\/a><\/sup><\/p>\r\n\r\n

<\/a><\/a>The 2012 Copyright Modernization Act<\/h1>\r\n

2012 also saw the enactment of revisions to Canada\u2019s Copyright Act<\/em> 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 \u201ceducation, parody or satire.\u201d18<\/a><\/sup><\/p>\r\n

The addition of \u201ceducation\u201d as an enumerated purpose is particularly worthy of note. Under the Alberta<\/em> case, facilitating students\u2019 studying could potentially bring a copier within the scope of fair dealing where their purposes were \u201csymbiotic\u201d and without \u201culterior motive.\u201d With the inclusion of \u201ceducation\u201d as a separate purpose, however, it is no longer necessary for the copier\u2014the maker of educational materials\u2014to 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 \u201cfair.\u201d<\/p>\r\n

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<\/em>.<\/p>\r\n\r\n

<\/a><\/a>Reaffirming Fair Dealing in Higher Education<\/h1>\r\n

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<\/em>).19<\/a><\/sup> 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 \u201cleaving out the perspective of the students who use the materials.\u201d20<\/a><\/sup> Abella confirmed that \u201cThe purpose of copying conducted by university teachers for student use is for the student\u2019s education.\u201d21<\/a><\/sup> Additionally, the Supreme Court found that the lower court erred by considering aggregate amount of copying instead of the copying made on each student\u2019s behalf:<\/p>\r\n

[T]he trial judge\u2019s criticism of York\u2019s Guidelines on the basis that different portions of a single work could be distributed to different students, such that an author\u2019s entire work could end up being distributed in the aggregate, is also contradicted by SOCAN, which held that \u201c[s]ince fair dealing is a \u2018user\u2019s\u2019 right, the \u2018amount of the dealing\u2019 factor should be assessed based on the individual use, not the amount of the dealing in the aggregate.\u201d22<\/a><\/sup><\/p>\r\n

The decision reaffirms that the Supreme Court remains strongly supportive of users\u2019 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<\/em> case expressly confirms that students have a \u201cright to receive course material for educational purposes in a fair manner.\u201d23<\/a><\/sup> Institutional and instructional practices that actualize this right (including the making and distribution of copies as educational resources) are therefore \u201cconsistent with the underlying balance between users\u2019 rights and creators\u2019 rights in the Act<\/em>.\u201d24<\/a><\/sup><\/p>\r\n\r\n

<\/a><\/a>Two-Step Test for Determining Fair Dealing<\/h1>\r\n

CCH Ltd. v. Law Society of Upper Canada <\/em>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<\/em>, 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:<\/p>\r\n\r\n