The Case for
Fair Use in Canada
michael geist
canada research chair in internet and e-commerce law
university of ottawa

Outline
• The hot issue
• What is fair use?
• Why Canada?
• How Canada?

The “Hot” Issue
• Litigation in the U.S. (fair use project)
• Innovation testing fair use
• Reform - Australia, UK, NZ, EU
• WIPO - Chile focus on exceptions
• Canada - several groups focus on fair use

Why The “Hot” Issue?
• Emphasis on balance in copyright discourse
• Digitization
• Growing class of creators focused on access
• Innovation - both technical and creative
business models
• Rejection of DRM/anti-circumvention and
the accompanying interoperability issues

Not a Panacea
• Criticism from rights holders
“CEA has twisted and contorted ‘fair use’ beyond its true
intent, turning it into a free pass for those who simply don't
want to pay for creative works.”
- Cary Sherman, RIAA
• Criticism from “Copy-Left”
“ Either pay a lawyer to defend your fair use rights or pay
a lawyer to track down permissions so you don’t have to
rely upon fair use rights.”
- Larry Lessig

Flavours of Fair Use
• Fair Use, Not Free Use
– Fair use is a core provision in a “balanced approach”
– It is not free for all uses
– It is not prior permission for any/all uses
– Rather - “fair” - fair to the creator and fair to the public having
regard to the traditional notion of balance in copyright
• Fair Use - U.S. style
• Expanded fair dealing
• Expansion of exceptions

Fair Use - U.S.
Copyright Act, Section 107
the fair use of a copyrighted work, including such use by reproduction in
copies or phonorecords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an
infringement of copyright. In determining whether the use made of a work
in any particular case is a fair use the factors to be considered shall include -
(1) the purpose and character of the use, including whether such use is
of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the
copyrighted work.

Fair Dealing - Canada
29 Fair dealing for the purpose of research or private study
does not infringe copyright.
29.1 Fair dealing for the purpose of criticism or review does
not infringe copyright if the following are mentioned…
29.2 Fair dealing for the purpose of news reporting does not
infringe copyright if the following are mentioned…

Fair Dealing - Canada
“The exceptions to copyright infringement, perhaps more properly
understood as users’ rights, are set out in ss. 29 and 30 of the Act. The fair
dealing exceptions to copyright are set out in ss. 29 to 29.2. In general
terms, those who deal fairly with a work for the purpose of research, private
study, criticism, review or news reporting, do not infringe copyright.”
“Before reviewing the scope of the fair dealing exception under the
Copyright Act, it is important to clarify some general considerations about
exceptions to copyright infringement. Procedurally, a defendant is required
to prove that his or her dealing with a work has been fair; however, the 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.”

Fair Dealing - Canada
“The fair dealing exception under s. 29 is open to those who can show that
their dealings with a copyrighted work were for the purpose of research or
private study. “Research” must be given a large and liberal
interpretation in order to ensure that users’ rights are not unduly
constrained. I agree with the Court of Appeal that research is not limited
to non-commercial or private contexts.”
- CCH Canadian v. LSUC

Fair Use - Why Canada?
1. Consistent with Supreme Court’s vision of copyright

Fair Use - Why Canada?
“Excessive control by holders of copyrights and other forms of intellectual
property may unduly limit the ability of the public domain to incorporate
and embellish creative innovation in the long-term interests of society as a
whole, or create practical obstacles to proper utilization. This is reflected in
the exceptions to copyright infringement enumerated in ss. 29 to 32.2,
which seek to protect the public domain in traditional ways such as fair
dealing for the purpose of criticism or review and to add new protections to
reflect new technology, such as limited computer program reproduction and
“ephemeral recordings” in connection with live performances.”
- Theberge
• Combination of SCC view - balance, user rights - consistent with a
provision that is itself not unduly constrained by limited enumerated
categories
• If user rights and balance are to mean anything, they cannot be restricted
solely to the current fair dealing list

Fair Use - Why Canada?
1. Consistent with Supreme Court’s vision of copyright
2. Consistent with public practice

Fair Use - Why Canada?
- the public, as a matter of course:
- Records television shows
- Transfer music between devices (ie. copy to CD to iPod)
- Share clips of their culture
- Offers links or pointers to websites
- Engages in shared learning and cultural experiences
- Possible to establish compensation systems for some of these activities
- Likely to face opposition
- Expense may outweigh benefits
- Market better suited to build in the costs into price
- Uses may reflect the balance of what is “fair”
- Copyright awareness vs. copyright acceptance

Fair Use - Why Canada?
1. Consistent with Supreme Court’s vision of copyright
2. Consistent with public practice
3. Consistent with artists’ needs

Fair Use - Why Canada?
Canadian Music Creators Coalition
“On the issue of fair use of music, copyright should be
changed to clarify that transferring songs from one
format to another is not an infringement of copyright. It
is not fair to require consumers to pay twice for the
ability to transfer bought songs to an iPod or other
device by imposing additional levies. Instead,
eliminating the rigid technicalities of the current fair
dealing provisions and moving to a more flexible
concept of fair use can solve this problem.”

Fair Use - Why Canada?
Appropriation Art
“Artists and other creators require Certainty of Access.
Artists who use appropriation in their practice, rely on
Canada’s fair dealing exception to create. Fair dealing is
a narrow right, perhaps at times too narrow to support
this work. Creators should enjoy the support of the law,
and not have to work under conditions of uncertainty.
The work we speak of here does not compete with that
of its subject, nor does the value of this work derive
from the value of its subject. The time has come for the
Canadian government to consider replacing fair
dealing with a broader defense, such as fair use, that
will offer artists the certainty they require to create.”

Fair Use - Why Canada?
Documentary Organisation of Canada
“The ‘fair dealing’ defence in the Copyright Act is
designed to respect freedom of expression, balancing the
rights of authors with the public good. However, the
categories of fair dealing are too narrow to
accommodate many otherwise fair treatments of pre-
existing content common to documentary films,
including parody, sampling and social commentary.
The narrowness of the defence leads to cautious
application by filmmakers and producers, as well as by
insurers. Fair dealing has become a gate many
documentary filmmakers must overcome, not the
creative catalyst it is intended to be.”

Fair Use - Why Canada?
- Common themes
- Artists depend on access - fair use a critical part
of access
- Artists depend on connecting with
fans/consumers/the public - they need to be
treated fairly
- Fair dealing may result in some loss of control/loss of
revenue
- Compensated by greater certainty, creative license, and
potential to exploit other markets

Fair Use - Why Canada?
1. Consistent with Supreme Court’s vision of copyright
2. Consistent with public practice
3. Consistent with artists’ needs
4. Consistent with emerging expression

Fair Use - Why Canada?
- The Rise of User-Generated Content/Blurring of User-Creator
Distinction
- Blogging
- Video
- Music Mash-Up
- Citizen Journalism
- Wikipedians
- Flickr - digital photography
- Flourishing creativity and cultural development - much of the
interactivity, commentary, and content has a fair use component

Fair Use - Why Canada?
1. Consistent with Supreme Court’s vision of copyright
2. Consistent with public practice
3. Consistent with artists’ needs
4. Consistent with emerging expression
5. Consistent with business’ needs

Fair Use - Why Canada?
Telus
“Canada needs a new regime for recognizing appropriate exceptions to
copyright liability which will ensure our copyright laws have the capacity
and capability to reflect and respond to changes in technology and in
consumer behaviour. In order for Canada to continue to foster innovation
and play a leading role in the development and usage of world class
communications technologies, our copyright system must be flexible
enough to adapt in a timely manner to the rapidly changing technical and
entertainment environment we now face, while ensuring a proper balance is
maintained between the rights of creators and the rights of consumers and
other users.
In particular, the Government should ensure Canadians are able to use new
technologies to fully enjoy copyrighted materials they have legally obtained
or accessed in a manner that does no real measurable harm to copyright
owners' legitimate interests. For example, customers of TELUS and other
Canadian broadcasting distribution undertakings (BDUs) should be able to
use new technologies to record, store and access television programming,
for their own private enjoyment, at a time of their choosing ("time-
shifting"). Similarly, Canadians should be able to transfer content they own
from one device to another for ease and flexibility of access for their private
use ("space-shifting").”

Fair Use - Why Canada?
Digital Security Coalition
“Canadian innovators rely on an unacceptably narrow defence of
fair dealing for the legality of reverse engineering and security
research. Our American competitors face no such uncertainty with
respect to the broader US defence of fair use, which clearly captures
reverse engineering. It is time to address this competitive
disadvantage by harmonizing fair dealing with fair use.”

Fair Use - Why Canada?
Common themes
- innovation relies on balance - protection for IP is important, but so
too is appropriate standards of access
- Canadian law hinders the introduction of new services and new
innovative research

Fair Use - Why Canada?
1. Consistent with Supreme Court’s vision of copyright
2. Consistent with public practice
3. Consistent with artists’ needs
4. Consistent with emerging expression
5. Consistent with business’ needs
6. Consistent with emerging international practice

Fair Use - Why Canada?
Chile WIPO Exceptions Proposal
1. Identification, from the national intellectual property systems of
Member States, of national models and practices concerning
exceptions and limitations.
2. Analysis of the exceptions and limitations needed to promote
creation and innovation and the dissemination of developments
stemming therefrom.
3. Establishment of agreement on exceptions and limitations for
purposes of public interest that must be envisaged as a minimum in
all national legislations for the benefit of the community; especially
to give access to the most vulnerable or socially prioritized sectors.

Fair Use - Why Canada?
UK Gowers Report Recommendations
Recommendation 8 - Introduce a limited private copying
exception by 2008 for format shifting for works
published after the date that the law comes into effect.
There should be no accompanying levies for consumers.
Recommendation 9 - Allow private copying for research to
cover all forms of content. This relates to the copying,
not the distribution of media.
Recommendation 12 - Create an exception to copyright for
the purpose of caricature, parody or pastiche by 2008.

Fair Use - Why Canada?
Australia Exceptions
• Time shifting
• Format shifting
• Certain purposes exceptions:
– Non-commercial uses by LAM
– Non-commercial uses by educational institutions for educational
instruction
– Use by person with a disability
– Parody and satire
NZ Exceptions
• Time shifting
• Format shifting

Fair Use - Why Canada?
EU Information Society Directive
(a) use for the sole purpose of illustration for teaching or scientific research, as long as the source,
including the author's name, is indicated, unless this turns out to be impossible and to the extent
justified by the non-commercial purpose to be achieved;
(b) uses, for the benefit of people with a disability, which are directly related to the disability
and of a non-commercial nature, to the extent required by the specific disability;
(c) reproduction by the press, communication to the public or making available of published
articles on current economic, political or religious topics or of broadcast works or other subject-
matter of the same character, in cases where such use is not expressly reserved, and as long as the
source, including the author's name, is indicated, or use of works or other subject-matter in
connection with the reporting of current events, to the extent justified by the informatory purpose
and as long as the source, including the author's name, is indicated, unless this turns out to be
impossible;
(d) quotations for purposes such as criticism or review, provided that they relate to a work or
other subject-matter which has already been lawfully made available to the public, that, unless
this turns out to be impossible, the source, including the author's name, is indicated, and that their
use is in accordance with fair practice, and to the extent required by the specific purpose;

Fair Use - Why Canada?
EU Information Society Directive
(e) use for the purposes of public security or to ensure the proper performance or reporting of
administrative, parliamentary or judicial proceedings;
(f) use of political speeches as well as extracts of public lectures or similar works or subject-
matter to the extent justified by the informatory purpose and provided that the source, including
the author's name, is indicated, except where this turns out to be impossible;
(g) use during religious celebrations or official celebrations organised by a public authority;
(h) use of works, such as works of architecture or sculpture, made to be located permanently in
public places;
(i) incidental inclusion of a work or other subject-matter in other material;
(j) use for the purpose of advertising the public exhibition or sale of artistic works, to the extent
necessary to promote the event, excluding any other commercial use;
(k) use for the purpose of caricature, parody or pastiche;

Fair Use - Why Canada?
EU Information Society Directive
(l) use in connection with the demonstration or repair of equipment;
(m) use of an artistic work in the form of a building or a drawing or plan of a building for the
purposes of reconstructing the building;
(n) use by communication or making available, for the purpose of research or private study, to
individual members of the public by dedicated terminals on the premises of establishments
referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or
licensing terms which are contained in their collections;
(o) use in certain other cases of minor importance where exceptions or limitations already exist
under national law, provided that they only concern analogue uses and do not affect the free
circulation of goods and services within the Community, without prejudice to the other
exceptions and limitations contained in this Article.

Fair Use - Why Canada?
1. Consistent with Supreme Court’s vision of copyright
2. Consistent with public practice
3. Consistent with artists’ needs
4. Consistent with emerging expression
5. Consistent with business’ needs
6. Consistent with emerging international practice
7. Consistent with long-term rights holder interests

Fair Use - Why Canada?
• For Rights Holders
– Potential to reduce rights clearance costs for new creativity
– Opportunity to build stronger fan/consumer base (ie. RIAA/CRIA
support for device shifting)
– Opportunity to price-in fair use into goods and services - better value
proposition
• For Copyright Collectives
– Best represents interests of artist members
– Best available alternative - ie. education exemption
– Stronger position at copyright board
– Licenses focused on value proposition; reduced litigation expense
– Consistent with international counterparts

Fair Use - How Canada?
• Trosow approach
– Amend s.29 - illustrative rather an exhaustive (“such as”)
• Linden approach (CCH drawn from Hubbard)
– Six factors:
• Purpose of the dealing
• Character of the dealing
• Amount of the dealing
• Alternatives to the dealing
• Nature of the work
• Effect of the dealing on the work
• Piecemeal approach (e.g)
– Parody
– Time shifting
– Device shifting

michael geist
mgeist@uottawa.ca