Opinions, insights, and news
Opinions, insights, and news
A recent copyright decision of the Federal Court of Canada, namely, The Canadian Copyright Licensing Agency (Access Copyright) v York University, 2017 FC 669, has stirred the conversation around what constitutes ‘fair’ for the purposes of fair dealing. For our Shift Law Blog readers, the case has given us a great reason to write about how the fair dealing exception to copyright infringement works. What follows is a discussion of what fair dealing is, followed by a discussion of the case.
Fair dealing under the Copyright Act
Copyright holders have powerful exclusionary rights under Canadian copyright law - including, the right to exclude all others from, among other things, reproducing, performing or publishing a substantial part of their copyrighted original works in any material form. However, these rights are not without exception. In the spirit of counterbalancing the exclusive rights of copyright owners with “user rights”, Parliament enacted the “fair dealing” provisions of the Copyright Act (the “Act”) (sections 29, 29.1 and 29.2). These provisions have been understood by courts as a positive right to do with an original work what would otherwise constitute copyright infringement in certain circumstances.
For use of another’s copyrighted work without permission to constitute fair dealing, the use must: (1) fall within a prescribed purpose under the Act; and (2) be “fair”.
The Act sets out eight distinct purposes for which unauthorized copying may constitute fair dealing, namely:
In the case of criticism, review and news reporting, the dealing will only be fair if the source and the author’s name (if given in the source) are mentioned.
Fairness of the dealing
Copying of a work for one of these prescribed purposes will only be lawful if it is “fair”. Fairness is not actually defined in the Act. Whether a dealing is fair will be determined on the basis of a non-exhaustive list of factors which have been identified out by the Supreme Court of Canada and which are to be applied on a case-by-case basis. The burden of proving that the copying is fair rests with the party who is asserting fair dealing.
The relevant factors are:
The Canadian Copyright Licensing Agency (Access Copyright) v York University
The fair dealing factors were recently applied by the Federal Court in The Canadian Copyright Licensing Agency (Access Copyright) v York University, 2017 FC 669. In this case, the Canadian Copyright Licensing Agency (“Access”), (a collective whose mandate it is to manage and enforce the rights of authors and copyright owners), started an action against York University (“York”) to enforce copyright tariffs in respect of copying activities of York’s employees.
At issue was the reproduction of online and hard copy course materials compiled by staff for students’ use in their studies. York did not pay tariffs to Access for these copies but rather, York claimed to have been making the copies in compliance with their own Fair Dealing Guidelines (the “Guidelines”) which, York claimed, excused them from having to pay tariffs for copying original works. In its defence, York counterclaimed against Access seeking a declaration that the copying at issue constituted fair dealing.
The Court needed to assess whether York’s use of the works was fair dealing thereby relieving York of its need to pay the tariffs. In applying the fair dealing framework, the Court held that while the copies made under the Guidelines were certainly for an allowable purpose (education, research or private study), neither the Guidelines nor their application were fair, based on the relevant factors for assessing fairness.
Here is how the Court applied the fair dealing factors:
It’s interesting to note that here, the Federal Court appears to have considered additional factors to assess the fairness of dealing with original works. The Court considered the fact that York made no real effort to “review, audit, or enforce its own Guidelines” which underscored the unfairness of York’s Guidelines.
This case illustrates how the factors are applied and the fact that there is no bright line test for when it is ‘fair’ to use another’s original work without permission.
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