Access Copyright: Vulnerabilities in the Fair Dealing Analysis

This comment discusses the Federal Court of Canada’s decision in Canadian Copyright Licensing Agency v. York University and highlights key vulnerabilities in the Court’s fair dealing analysis which require clarification. Such clarification would limit improper analysis in the future.

The Canadian Copyright Licensing Agency (“Access Copyright”) was handed a victory by Justice Phelan of the Federal Court of Canada on July 12, 2017.1 Phelan J. held that an interim tariff was mandatory against York University (“York”) for the copying activities of York employees, and further, the Fair Dealing Guidelines from York were not fair dealing for the purposes of the Copyright Act.2

Fair dealing provides a statutory exception to copyright infringement, allowing users to engage in activities that would otherwise be considered copyright infringement.3 The Supreme Court of Canada (“SCC”) has affirmed the fair dealing exception to copyright infringement is a user’s right and “[i]n order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively.”4 In its first fair dealing case in 2004,5 the SCC clarified the test to be used for fair dealing in Canada. In 2012, amendments were made to the Copyright Act through the enactment of Bill C-11,6 and the SCC released five cases related to copyright.7

In order to rely on fair dealing, the party claiming fair dealing must first demonstrate the dealing is for an allowable purpose, including research, private study, education, parody, or satire.8 The second stage involves assessing whether the dealing is fair using six factors:

    1.        the purpose of the dealing;
    2.        the character of the dealing;
    3.        the amount of the dealing;
    4.        alternatives to the dealing;
    5.        the nature of the work; and
    6.        the effect of the dealing on the work.9

The Access Copyright decision arguably departed from SCC precedent on fair dealing in the second step of the fairness analysis in several areas. However, there are ambiguities and vulnerabilities in that precedent which allow for misinterpretation. This comment highlights three key areas in the fair dealing analysis that require further clarity in order to limit improper analysis in future fair dealing cases.

First, the “purpose of the dealing” factor promotes superfluous consideration of purpose  because parties involved tend to consider the purpose of the dealing at both stage one and two of the analysis. In order to combat this issue, the Copyright Board of Canada refers to the “purpose of the dealing” factor in stage two as the “goal of the dealing” factor.10 The Copyright Board also suggests the analysis of this factor should involve “considering the fairness of the goal for which the permitted (under the first step) activity (e.g., research, private study) took place.”11 Clarification from the SCC is needed to determine whether the “purpose of the dealing” factor in stage two should instead refer to the “goal of the dealing” factor in order to prevent parties and courts from conflating purpose across distinct analytical stages.

Second, the “amount of the dealing” factor is susceptible to misinterpretation. It remains ambiguous whether this factor includes both quantitative and qualitative amounts copied, or strictly the quantity of the work copied in proportion to the entire work. Earlier fair dealing cases from the SCC12 restricted the analysis of this factor to quantitative measures, but the Federal Court in Access Copyright considered both quantitative and qualitative measures. The SCC’s decision in Society of Composers, Authors and Music Publishers of Canada v. Bell13 involved previews of musical selections prior to purchase. The Copyright Board explains that “many previews in the Bell case would have likely included the ‘hook’ of a song, arguably the most qualitatively important portion of a song,”14 yet this was not discussed by the SCC. Further reasoning from the SCC is required to determine whether this factor should consider both quantitative and qualitative measures.

Finally, the “nature of the work” factor is vulnerable to misinterpretation due to its vague explanation in fair dealing precedent. The SCC held in CCH Canadian Ltd. v. Law Society of Upper Canada15 that “if a work has not been published, the dealing may be more fair in that its reproduction with acknowledgement could lead to a wider public dissemination of the work—one of the goals of copyright law.”16 On the contrary, dealing with regard to confidential works will typically be deemed less fair. In order to clarify this factor, the SCC could borrow from American fair use authority.17 In Campbell v. Acuff-Rose Music Inc.,18 the Supreme Court of the United States held “that some works are closer to the core of intended copyright protection than others, with the consequence that fair use is more difficult to establish when the former works are copied.”19 The scope of fair use is narrower for unpublished works because “the author’s right to control the first public appearance of his expression weighs against such use of the work before its release.”20 In the fair use analysis there is a broader scope for copying factual or purely informational works. Therefore, copying these works will generally be fair. On the other hand, copying creative or fictional works will generally be less fair. Canada could borrow from American fair use precedent in order to address ambiguity in the “nature of the work” factor, incorporating consideration of the type of work into the analysis.

The SCC addressed copyright law and the related fair dealing analysis in several cases, including CCH, Alberta (Education), and Bell. However, ambiguities and vulnerabilities persist in the analytical framework. Proper interpretation of fair dealing in the future demands definitive guidelines from the SCC on the appropriate inquiry to be used at each stage of the fair dealing analysis.

* BA Honours (University of Saskatchewan), JD Candidate (University of Saskatchewan).

[1] Canadian Copyright Licensing Agency v York University, 2017 FC 669, 149 CPR (4th) 375 [Access Copyright].

[2] RSC 1985, c C-42.

[3] Ibid, s 29.

[4] CCH Canadian Ltd. v Law Society of Upper Canada, 2004 SCC 13 at para 48, [2004] 1 SCR 339 [CCH].

[5] Ibid.

[6] Copyright Modernization Act, SC 2012, c 20.

[7] Entertainment Software Association v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, [2012] 2 SCR 231; Rogers Communications Inc. v Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 SCR 283; Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2012 SCC 36, [2012] 2 SCR 326 [Bell]; Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, [2012] 2 SCR 345 [Alberta (Education)]; Re:Sound v Motion Picture Theatre Associations of Canada, 2012 SCC 38, [2012] 2 SCR 376.

[8] Copyright Act, supra note 2, s 29. Section 29.1 also provides for exceptions related to criticism and review. Section 29.2 includes an exception for news reporting.

[9] CCH, supra note 4 at para 53. The factors were initially outlined by Justice Linden of the Federal Court of Appeal in CCH Canadian Ltd. v Law Society of Upper Canada (2002 FCA 187 at paras 146-50, [2002] 4 FC 213), using both the American fair use doctrine and Hubbard v. Vosper ([1972] 1 All ER 1023) as guidance.

[10] Re Reproduction of Literary Works, 2016 CarswellNat 436 (WL Can) at para 246 (Copyright Board of Canada).

[11] Re Reproduction of Literary Works, 2015 CarswellNat 1792 (WL Can) at para 264 (Copyright Board of Canada) [Re Literary Works].

[12] See Alberta (Education), supra note 6 at paras 28-29; Bell, supra note 7 at paras 39-43; and CCH, supra note 4 at para 68.

[13] Bell, supra note 7.

[14] Re Literary Works, supra note 11 at para 320.

[15] CCH, supra note 4.

[16] Ibid at para 58.

[17] Unlike fair dealing, fair use is an open-ended exception to copyright infringement, where any use may qualify, so long as it meets the fair use criteria in the United States Code (17 USC § 107).

[18] 510 US 569 (1994).

[19] Ibid at 586.

[20] Harper & Row, Publishers, Inc. v Nation Enterprises, 471 US 539 (1985) at 564.

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