The Changing Face of Fair Dealing in Canadian Copyright Law: A Proposal for Legislative Reform

Chapter 15

The Changing Face of Fair Dealing in Canadian Copyright Law: A Proposal for Legislative Reform
Carys Craig

The fair dealing defence has an integral role to play in furthering the purposes of copyright and maintaining the proper balance between the interests of owners and users of protected material. In Canada, it has never had the strength to fulfil this role. In CCH Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada finally rejected the unduly restrictive construction of fair dealing that had characterized judicial consideration of the defence and acknowledged the centrality of fair dealing in copyright policy. The author argues that it is time for the legislature to follow suit.

The rigid confines of the Copyright Act’s fair dealing provisions continue to reflect a vision of fair dealing as a marginal exception that must be strictly construed and rarely enjoyed. This sits uneasily with the public policy balance expounded by the Supreme Court. These provisions should be replaced with an open-ended defence similar in form to the United States’ equivalent of “fair use.” Such statutory revision is necessary to cement the significance of CCH in the development of a robust fair dealing defence; it is therefore an essential step towards furthering the public purposes of the copyright system.

About the Author:

Carys Craig is an assistant professor of law at Osgoode Hall Law School where she teaches courses on copyright, trademarks, and international intellectual property. She obtained a First Class LL.B. Honours degree from the University of Edinburgh, during which spent one year on exchange at McGill University, and received an LL.M. from Queen’s University in Kingston, Ontario. She is currently completing her S.J.D. at the University of Toronto, where she has been a graduate fellow of the Centre for Innovation Law and Policy. Her doctoral thesis, Copyright, Communication & Culture: Re-imagining the Copyright Model, explores the underlying philosophical assumptions of Canada’s copyright system and the role that they play in shaping copyright doctrine.

She was the recipient of the David Watson Annual Memorial Award for her article “Locke, Labour, and Limiting the Author’s Right: A Warning Against a Lockean Approach to Copyright Law,” published in the Queen’s Law Journal. Her forthcoming publications include “The Evolution of Originality in Canadian Copyright Law: Authorship, Reward and the Public Interest” in the University of Ottawa Law & Technology Journal, and “Putting the Community in Communication: Dissolving the Conflict Between Freedom of Expression and Copyright Law” in the University of Toronto Law Journal.

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