Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use
Giuseppina (Pina) D'Agostino
Osgoode Hall Law School - York University
September 13, 2007
CLPE Research Paper No. 28/2007
McGill Law Review, Vol. 53, No. 2, 2008
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.
Number of Pages in PDF File: 59
Keywords: copyright, fair dealing, fair use, best practices, Canada, UK, US
JEL Classification: O34, I2, K11, L82working papers series
Date posted: September 17, 2007 ; Last revised: April 30, 2009
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