Fair Use 2.0: The Rebirth of Fair Dealing in Canada
I posted the most recent draft of my new paper on fair dealing on SSRN.
The paper recounts the history of fair use and fair dealing and shows that, contrary to conventional wisdom, the enactment of the Imperial Copyright Act of 1911 – and subsequently the enactment of the Canadian Copyright Act of 1921 – were not designed to cause any major alteration in the common law of fair dealing, and the explicit recognition of five enumerated purposes in the (then) newly-enacted fair dealing provision was not intended to limit the principle of fair dealing exclusively to those five purposes.
I argue, despite abundant contemporary literature to the contrary, that the perceived dichotomy between the open-ended US-style fair use and the supposedly close-ended fair dealing is false. The question of whether the list of enumerated purposes is exhaustive or, instead, illustrative of a broader principle has never been put squarely before the courts, let alone the higher courts, and certainly not in Canada. Similarly, no court has ever confronted the question of whether the common law fair use doctrine that existed before 1911 continues to coexist with the statutory fair dealing. Therefore, the question of whether fair dealing in Canada can apply to purposes that are not explicitly mentioned in the Copyright Act is an open one, and as the paper shows, can and should be answered affirmatively. Doing so will not transplant a foreign legal concept but rather will reunite present copyright doctrine with its rich and historic roots that were latent but never discarded.
Embracing an open-ended fair dealing is the only logical application of the Court’s decisions and Parliament’s action, and the only interpretation of the Act that can be internally, historically, and constitutionally coherent.
You can download the paper here.
Image: cc by Laurel L Russwurm.