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Abstract:
As a result of the March 4, 2004 Supreme Court of Canada decision in CCH Canadian Ltd v Law Society of Upper Canada for the first time in Canadian copyright history, the court determined that Canadian law must recognize a user right to carry on exceptions generally and fair dealing in particular. This paper compares the Canadian fair dealing legislation and jurisprudence to that of the UK and the US. It is observed that because of CCH, the Canadian common law fair dealing factors are more flexible than those entrenched in the US. For the UK, certain criteria have emerged from the caselaw consonant to Canada's pre-CCH framework and in many ways there is now a hierarchy of factors with market considerations at the fore. The real differences, however, ultimately lie in the policy preoccupations held by the respective courts, with Canada's top court alone concerned in championing user rights above all other rights. The paper concludes that Canadian fair dealing does not require too much healing but would benefit from some remedies outside (and complementary to) the law and the courts. While doing nothing does not seem to be the appropriate response, legal intervention as many advocate may not be warranted either. Rather than, or at the very least together with, reforming the law, establishing fair dealing best practices is most promising. The parties directly affected in a specific industry can together develop these guidelines to ultimately aid in clearer and ongoing fairer fair dealing decision-making in the courts. It is here that US initiatives can serve as most fruitful to emulate.

copyright, fair dealing, fair use, best practices, Canada, UK, US

Abstract:
Canada's Supreme Court ruled that publishers need permission from freelance authors before reproducing their works in online databases. But in contrast to the approach taken in Europe and the US, publishers are now entitled to republish articles on CD-ROM without asking or compensating the freelance authors. Ultimately, irrespective of the publishing medium, the Court defers to private ordering to clarify ambiguities in new use clauses that will continue to persist as technologies evolve to the detriment of freelancers. Thus this decision will have little, if any, impact in practice.

copyright, freelance publishers, authors, database, CD-ROM, Robertson