When is it “fair” to copy an original work?

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”.

Allowable Purpose 

The Act sets out eight distinct purposes for which unauthorized copying may constitute fair dealing, namely:

• research
• private study
• education
• satire
• parody
• criticism
• review
• news reporting

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 purpose of the dealing: this factor gets to the root of the user’s real purpose for the copying. For example: copying for research done for commercial purposes may not be as fair as copying for research done for charitable purposes.
   
• The character of the dealing: this factor relates to the way the work is dealt with. Multiple copies of a work that are widely distributed may be unfair. If a copy is destroyed after use, this may favour a finding of fairness.
   
• The amount of the dealing: for a dealing to be considered fair, only a reasonably necessary amount of copying is permitted.
   
• Alternatives to the dealing: if a non-copyrighted equivalent of the work is available that could have been used instead, this will impact on a finding of fairness.
   
• The nature of the work: it will be relevant whether the work is published or unpublished, and confidential or non-confidential.
   
• Effect of the dealing on the work: if a reproduced work is likely to compete with the original work’s market, this may suggest that the dealing is not fair.

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: 

• There were no safeguards in place to ensure that the copying was being done for the allowable purpose, tending toward unfairness.
   
• Regarding the character of the dealing, the wide-ranging, large volume copying tended toward unfairness.
   
• The quantitative amount of a work that could be copied as set by the Guidelines was totally arbitrary- there was no explanation why 10% of a single article or any other limitation was fair. The guidelines also failed to address copying limits from a qualitative perspective – 10% of the work may have been a relatively small amount of the work, but quantitatively, it may have made up the core of the work.
   
• York failed to make out an alternative to the dealing argument altogether, which weighed against a finding of fairness.
   
• The court found the works to be in the nature of published originals, developed through learned skill, complex analysis, editorial judgment and pedagogical expertise and that most people were attempting to make a living from the writing and publishing at issue which weighed against fairness.
   
• The Court found a direct link between the dealing resulting from use of the Guidelines and a decline in sales of the works and Access’ licensing revenues to creators and publishers.

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.