The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright

Michael Geist sez:

“I am delighted to report that this week the University of Ottawa Press published The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law, an effort by many of Canada’s leading copyright scholars to begin the process of examining the long-term implications of the copyright pentalogy. The book is available for purchase and is also available as a free download under a Creative Commons licence. The book can be downloaded in its entirety or each of the 14 chapters can be downloaded individually. This is the first of a new collection from the UOP on law, technology and society (I am pleased to serve as the collection editor) that will be part of the UOP’s open access collection.”

And I am delighted to report that I’m the author of one of the chapters in this book. The title of my chapter is Fair Use 2.0: The Rebirth of Fair Dealing in Canada. My chapter, to paraphrase Michael Geist’s description in the Introduction, examines the legislative history of the fair dealing provision contained in the 1911 UK Copyright Act. I show that the provision was intended to be flexible, yet for more than a hundred years, courts treated the fair dealing principle in a narrow, restrictive manner. Katz characterizes the distinction between fair use and fair dealing as a “myth,” marshalling evidence culled from the historical record to make the case that the codification of fair dealing in 1911 was not designed to limit its application to the five (currently eight) enumerated purposes included in the statute. My account of the history of fair dealing suggests that the Court has not expanded fair dealing, but rather has aligned its treatment of the exception with the historical record. You can download my chapter from here (on SSRN), or from the book webpage.

There is a lot to read and digest in this book, and my only immediate comment at this point, consistent with the thesis of my chapter, is that instead of saying that the Court shook the foundations of Canadian copyright law, I would say that the Court shook some dust off those foundations and reinforced them.