Recent Developments in Fair Dealing in Canada




Peter Jaszi
Washington College of Law
Ariel Katz
University of Toronto
Howard Knopf
Macera & Jarzyna, LLP
Martin Senftleben
University of Amsterdam


Recent copyright cases in the Supreme Court of Canada expanded fair dealing, Canada’s equivalent to U.S. fair use. These cases held, among other points, that users have rights that must be given a large and liberal interpretation”, that copyright law is about both “protection” and “access,” that “research” purposes are not strictly limited and there is no absolute requirement for transformative use in Canada. These cases stress that technological neutrality matters, paving the way for future innovation.

WCL hosted a discussion of these cases with Canadian attorneys Ariel Katz and Howard Knopf, and with comments by Prof. Martin Senftleben on how civil law judges might look at open-ended norms such as those in the Canadian cases. A summary of the event by fellow PIJIP Jimmy Koo is found below.


Jimmy Koo
September 12, 2012

“Canadian Copyright: Calm, Cool, and Clever,” hosted by the Program on Information Justice and Intellectual Property at the American University Washington College of Law, featured presentations by Professor Ariel Kats from the University of Toronto, Mr. Howard Knopf from Macera & Jarzyna, LLP, and Professor Martin Senftleben from the University of Amsterdam.

Professor Kats kicked off the event by discussing three recent developments involving copyright law in Canada. First, he discussed the unprecedented concentration of Canadian Supreme Court cases involving copyright issues in 2012. He summarized that these cases entrenched the notion of users’ rights, injected some overdue rationality to the collective administration of copyright in Canada, introduced “technology neutrality” as a fundamental principle, and declared that the traditional balance in copyright between owners’ and users’ rights should be preserved in the digital environment. Second, Professor Kats discussed the passing of Bill C-11 by the Canadian Parliament by highlighting some of its notable features such as the expansion of users’ rights (explicit recognition of education, parody, and satire in fair dealing); the exemption for user-generated-content, private copying, and temporary copies; educational exemptions; the implementation of a notice-and-notice system (unlike the notice-and takedown system in the U.S.); the cap on statutory damages for non-commercial uses ($5,000 for all infringements); and the DMCA-style anti-circumvention provision. Finally, Professor Kats discussed the changes at the grassroots level such as librarians, academics, faculty associations, and students organizations reclaiming fair dealing rights and well as revolting against Access Copyright and opt-opt systems. After discussing these three recent developments, Professor Kats analyzed in detail, the arguments involved in four of the five 2012 Canadian Supreme Court cases involving copyright issues. Namely, he discussed the two cases involving communication to the public by telecommunication (Rogers v. SOCAN; ESA v. SOCAN) and the two cases involving fair dealing (SOCAN v. Bell Canada; Alberta v. Access Copyright).

Mr. Knopf further discussed the current status in Canada on fair dealing issues. First, he analyzed some important aspects of Bill C-11 such as strong anti-circumvention measures with very limited and explicit exceptions, the explicit inclusion of “education, satire, or parody” in the fair dealing provisions, the notice-and-notice provision, as well the limitation on statutory damages. Then, he briefly discussed the six-factor test as discussed in CCH Canadian Ltd. v. Law Society of Upper Canada which, is very similar to the test laid out under 17 U.S.C. § 107. Then, Mr. Knopf discussed the current status after the exit of the Association of Universities and Colleges Canada (AUCC) from the Copyright Board Post Secondary tariff hearing. The tariff mandates that if a university or a college makes a single copy of a single work, the institution owes money per full time equivalent student (FTE) in the university to the rights holder. He identified the remaining main players in the discussion as Access Copyright, Association of Canadian Community Colleges (ACCC), and Professor Kats. Furthermore, in light of Access Copyright’s position, asking $45 per FTE, he Mr. Knopf discussed the deal by the University of Toronto ($27.50 per FTE with MFN and expiration date of 2013), the deal by the ACCC ($10 per FTE after $1 million in fees), as well as the negotiated settlement that the AUCC walked out on ($26 per FTE and $1.7 million in legal costs). In explaining the reasons for signing these deals, Mr. Knopf referred to the retroactivity discounts and the fear factor that drove some institutions (19 universities and 19 colleges to date) to sign these licenses. However, he also noted that the resistance movement has been gaining momentum with main institutions like the University of British Columbia refusing to sign the deal.

Professor Senftleben discussed the legislative problems in the European Union involving copyright limitations and exceptions. Namely, he highlighted the difficulty of coordination and implementation of laws among twenty-seven member countries. He compared the distinctive features of Anglo-American laws (fair use, open factors, case-by-case approach by judges, and the advantage of flexibility as well as quick reaction to new developments) with the features of laws in continental Europe (statutory limitations, fixed requirements, closed catalogue of limitations decided by legislators, the advantage of legal certainty, and the disadvantage of slow reactions to new developments). As an example, he discussed the three-step-test included in Art. 5(5) of the EU Copyright Directive. He noted that the effect of Art. 5(5) amounts to broad exclusive rights counter-balanced with exhaustive enumeration of exceptions, plus the regulation of the enumeration by the three-step test. Therefore, he noted that under the Directive, copyright limitations and exceptions must be interpreted narrowly and strictly in light of the three-step test. Next, Professor Senftleben discussed the possible solutions involving a “fair balance between the rights and interests of right holders on one hand and of users of protected works on the other hand” as well as a “fair balance between the right to freedom of expression of users of a work or other protected subject matter and reproduction right conferred on authors” by citing two cases from the Court of Justice of the European Union – FA Premier League and Eva-Maria Painer. Next, he discussed the possible enabling function of the three-step test, illustrated by Art. 9(2) of the Berne Convention, Art. 13 of TRIPS, and the Agreed Statements on Art. 10 of WCT. Professor Senftleben concluded by highlighting the growing interest in fair use solutions in the European Union by noting the consultation rounds for fair use as an option in the UK, the consultation on new legislation in Ireland, and the interest in more flexible limitations among industry circles in Germany.

  One Response to “Recent Developments in Fair Dealing in Canada”

  1. […] more on Canada’s interpretation of copyright, see PIJIP’s recent webcast on the Canadian Supreme Court. Share this:ShareFacebookLinkedInStumbleUponTwitter Filed Under: Government, Legal Cancel […]