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Access Copyright to the Supreme Court: No Need for Greater Fair Dealing Certainty

By Michael Geist

With Bill C-32 heading for second reading tomorrow, the inclusion of education as a fair dealing category looms as one of the big issues.  Groups such as Access Copyright oppose the reform and argue that legislative guidance on the scope of fair dealing is needed.  It turns out, however, that Access Copyright is prepared to argue precisely the opposite position when it suits.  This past summer, the copyright collective won a major fair dealing case at the Federal Court of Appeal, leading some education groups to seek leave to appeal the decision to the Supreme Court of Canada.  Access Copyright is opposed to the leave application and its memorandum to the court says the current six part fair dealing test is good enough.  In particular, it argues:


Access Copyright submits that there is no benefit in having this Court determine for all future cases that, where multiple purposes exist, one person's purpose should prevail over another's, or that when multiple copies are made, the court shouild look to the aggregate amount of copying in preference to the amount copies from each individual work. Such determinations would clearly be counter-productive since they would confine the future application of the exception and limit the trial judge's appreciation of what is fair in each particular case.

This Court held in CCH that the six fairness factors provide a 'useful analytical framework' which 'could help determine whether or not a dealing is fair.' It is recognized that the factors 'may be more or less relevant' depending on the facts of each case, and that 'in some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair.'

Thus, in CCH this Court stressed that fairness depends on the facts of each case.  The 'bright lines' requested by the Applicants are simply not possible where a case by case analysis is required. The change of any one fact may render a situation that was fair, unfair.

Note that in arguing that the Supreme Court should deny the leave to appeal, it is obviously arguing that the Federal Court of Appeal's decision should stand.  The decision included the following comment on Bill C-32's education exception:

I am also aware that Bill C-32, An Act to amend the Copyright Act, 3rd Session, 40th Parliament, 59 Elizabeth II, 2010, section 21 would amend section 29 to state that "Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright". However, this amendment serves only to create additional allowable purposes; it does not affect the fairness analysis. As the parties agree that the dealing in this case was for an allowable purpose, the proposed amendments to the Act do not affect the outcome of this case and no more will be said about Bill C-32.

It is important to stress once again - as the Federal Court of Canada did - that the inclusion of education as a fair dealing category will not open the floodgates to copying, but rather open the door to analysis of whether particular copying meets the fair dealing test that Access Copyright itself is now defending. One would hope that Access Copyright would maintain the same position on C-32 - bright line tests are not possible, the courts have guidance from the six fairness factors, and it is better to maintain flexiblity in the fair dealing doctrine to allow the courts to address on a case-by-case basis using well known criteria.

Full post as published by Michael Geist on November 01, 2010 (boomark / email).