Carys J. Craig^[1]
Osgoode Hall Law School, York University

Today, the fair dealing doctrine in Canada is remarkably similar, in purpose and scope, to the US fair use doctrine. It is not unusual for OER makers to assume that fair use is either not available in Canada or is far more restrictive than in the US. This is a mistake. While it may have been true, to some degree, during the 20th century, it is no longer the case. Fair dealing in Canada is now recognized as a broad and flexible user right that enables the fair use of copyrighted materials for educational and learning purposes. The terminology may vary, and certain considerations may be framed or weighted slightly differently, as explained below. However, the general Principles and Best Practices set out in this Code are intended to be equally appropriate for US and Canadian-based OER makers, and for materials destined for use in the United States and Canada alike. As such, if a use falls within a permitted fair dealing purpose, it can reasonably be assumed that a “fair use” in the US will be a “fair dealing” in Canada.

The Development of Fair Dealing in Canada

The Common History of Fair Dealing and Fair Use

The confluence of fair use and fair dealing should not be surprising—they share the same origins as 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 1911^[2] and in Canada ten years later,^[3] while the US fair use doctrine continued to develop in the courts until 1976. Unlike the eventual codification of fair use in section 107 of the US Copyright Act 1976, the statutory fair dealing defence 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 US counterpart.

Fair Dealing as a User Right

But 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.^[4] 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.”^[5]

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.”^[6] 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.

Importantly, the Court also set out factors for consideration in assessing the fairness of a use. These factors, drawn from the case law, are almost identical to the factors codified in section 107 of the US law: “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.”^[7] The only additional factor is consideration of available alternatives, discussed below.

While every fairness analysis is context-driven, it seems highly likely that, employing these factors, a fairness assessment in Canada will produce or support the same conclusion as it would in the United States. As stated above, if a use falls within a permitted fair dealing purpose, it can reasonably be assumed that a “fair use” in the US will be a “fair dealing” in Canada.

From this, we can take three broad propositions that point to the similarity between US fair use and Canada’s current fair dealing doctrine:

1. Fair dealing is to be regarded as a positive user right that is integral to the copyright system, its purpose, and its policy balance.
2. The enumerated statutory purposes in Canada are to be liberally interpreted so that they do not unduly constrain fair dealing and user rights.
3. Thereafter, the scope of fair dealing depends primarily on the fairness of the dealing, which is to be determined based on a multifactor analysis very similar to the US fair use factors.

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 Copyright^[8] 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.”^[9] 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.”^[10] 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,^[11] 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.”^[12]

These cases reinforced the lessons from CCH: Canada’s statutory fair dealing purposes should be liberally construed; facilitating an end-user’s fair dealing can bring the copier within 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.^[13]

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.”^[14]

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. Under this provision it is not an infringement of copyright for an individual to use an existing, published work “in the creation of a new work” if the use/dissemination of the new work is done “solely for non-commercial purposes.” Attribution of the source is required if reasonable, and the new work must not have “a substantial adverse effect, financial or otherwise, on the exploitation of the existing work” (including by substituting for it). This can be understood as a new, if limited, “transformative use” defence in Canada. The application and limits of the UGC exception have yet to be tested, but it is interesting to note that a non- commercial OER could fit the description of a “new work.”

Additional exceptions for educational institutions were also added in 2012. These included, for example, an explicit exception for works available through the Internet, according to which ”“it is not an infringement of copyright for an educational institution, or a person acting under the authority of one,” to reproduce a work that is “available through the Internet” for “educational or training purposes.”^[15] This could bring added reassurance to members of the OER community acting for an “educational institution.”^[16]

Finally, with a view to liability risks, it is worth noting new provisions which limit the range of available statutory damages for infringement. Particularly reassuring for non-commercial OER makers operating in Canada should be the range of $100 to a cap of $5,000 in total, for all works involved, if the infringement is for non-commercial purposes.^[17]

US-Canada Cross-Border Considerations for the OER Community

As we have seen, there are significant similarities between the US fair use doctrine and Canada’s fair dealing doctrine that should alleviate concerns about cross-border fair use/dealing in the OER community. Indeed, given developments since 2004, Canada’s fair dealing doctrine is effectively “a fair use provision in everything but name only.”^[18] In particular:

• The addition of “education” as an enumerated fair dealing purpose (which is to be given a “large and liberal” meaning) should enable OER uses to easily proceed over the first fair dealing hurdle.
• When a dealing is for the permitted purpose of “education” or “private study and research,” the only additional requirement is that the use is “fair.”
• Fairness in Canada is established through a contextual, multi-factor analysis very similar to the US fair use analysis, meaning that fair uses are likely also to be fair dealings.
• Non-commercial OER may also benefit from the UGC exception.
• Additional specific exceptions are available for educational institutions and those acting under their authority.

There are also some remaining minor differences and additional considerations that should be identified for cross-border US/Canada OER initiative:

• The fair dealing purpose hurdle: It remains the case that, “[u]nlike the American approach of proceeding straight to the fairness assessment, we do not engage in the fairness analysis in Canada until we are satisfied that the dealing is for one of the allowable purposes enumerated in the Copyright Act.”^[19] In order to be fair dealing, use of copyrighted material in OER must (genuinely)^[20] be for the purposes of education, or facilitating private study and research. Uses that are, for example, purely attention-grabbing or aesthetically pleasing may not satisfy this first step unless an educational goal can be convincingly articulated. The perception of “ulterior motives” can also weigh against fair dealing (although it should be stressed that commercial uses certainly can be fair dealing).^[21]
• No broad recognition of a transformative use doctrine: The transformative nature of a use is not a separate or prevailing consideration in determining fair dealing in Canada. It will, however, likely weigh in favour of fairness under, e.g., the “purpose” and “character” of the dealing factors in the fairness determination. By the same token, the lack of transformativeness does not preclude a finding of fairness. The Supreme Court has emphasized that “dissemination of works is also one of the Act’s purposes, which means that dissemination too, with or without creativity, is in the public interest.”^[22] OER increases access and dissemination, which weighs in favour of fair dealing. For non-commercial transformative uses that incorporate existing works into “new works,” the UGC exception may also be available.
• The Additional Fairness Factor—Availability of Alternatives: This additional factor in Canada’s fairness analysis means that courts considering fair dealing will ask whether “there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work,” or whether “the dealing was reasonably necessary to achieve the ultimate purpose.”^[23] If materials would have been “equally effective” without reproducing a copyrighted work, this may weigh against a finding of fairness. Note that this is only one factor in the overall assessment of fairness, however, and it does not require a user to demonstrate that use of a work was necessary or that no alternatives were available. Where a use is reasonably necessary or makes the material more effective in achieving its educational purpose, this should weigh in favour of fairness. Note that, according to the Supreme Court of Canada, “[t]he availability of a licence is not relevant to deciding whether a dealing has been fair.”^[24] (This is for the good reason that fair dealing requires no licence.)
• Additional attribution requirements for criticism, review and news reporting: Canada’s fair dealing provisions for criticism or review and news reporting contain, as a third hurdle, the need to mention (a) the source; and (b) if given in the source, the name of the (i) author, in the case of a work, (ii) performer, in the case of a performer’s performance, (iii) maker in the case of a sound recording, or (iv) broadcaster, in the case of a communication signal.^[25] These acknowledgement requirements have been held to be substantive components of the defence and are not explicitly subject to a reasonableness limit. There are, however, no equivalent acknowledgement requirements in the case of fair dealing for the purpose of “research, private study, education, parody or satire.”^[26] When fair dealing for educational purposes, acknowledgement of source/author is not required (although it is, of course, still recommended as good practice).
• Moral rights: An additional consideration for cross-border OER-makers is the availability of protection of moral rights in Canada. Authors have the right to the “integrity of the work and…where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.”^[27] These rights last for the duration of the copyright. Notably, fair dealing is not a defence to an infringement of moral rights. Where attribution is given in accordance with the Best Practices set out in this Code, however, there is unlikely to be any violation of moral rights. The attribution right is subject to a reasonableness condition. While the integrity right can prevent the distortion, mutilation or modification of a work, or its use “in association with a product, service, cause or institution,” it is violated only if such use is “to the prejudice of its author’s honour or reputation.”^[28]
• Crown Copyright: A final difference is worth noting. Whereas US government works generally belong in the public domain in the United States, in Canada, such materials (those prepared or published by or under the direction of control of Her Majesty or any government department) are typically protected by Crown Copyright. The Crown, as copyright owner, enjoys the same exclusive rights as other copyright owners, meaning that the lawful use of Canadian government works in OER would be subject to the same fair dealing analysis as any other copyrighted works (although, e.g., the nature of the work may weigh in favour of fairness).