Happy Fair Dealing Week 2020

It’s Fair Dealing and Fair Use Week. I didn’t initially plan to write anything but Meera Nair’s excellent post on fair dealing misrepresentations prompted me to add a few points.

Meera’s post describes how sixteen years after CCH v LSUC and “[d]espite the continued development of fair dealing by our Courts …, and Parliament’s continuing support for use and expansion of exceptions, fair dealing is even further from a solid footing in Canada’s university sector.”

As an example, she provides the misrepresentation of fair dealing by the University of British Columbia, whose library guide on fair dealing states the following:

When copying copyrighted works for use in a thesis, such copying is primarily for the purpose of research. As understood in the context of the fair dealing exception, the research purpose does not contemplate distribution to the public (i.e., publication of your research). 

Because the University requires you to submit your thesis to cIRcle (which, as mentioned above, means that it is published online) and also to submit your thesis to the Library and Archives Canada, the fair dealing exception is not available for use in your thesis. (Emphasis in the original.)

Meera explains why this statement, by one of Canada’s leading universities, misrepresents and unduly narrows the scope of fair dealing. Please read what she wrote; it’s excellent. And if you’re still not persuaded for some reason, continue reading this post.

Meera rightfully notes that the UBC guide conflates two aspects of copying that typically occur in the context of scholarly research. The first is “copying from reference materials in order to become knowledgeable about one’s subject in order to embark on a scholarly path of the student’s choosing”. This aspect of academic research, I would add, could also be regarded as “private study”. The second is “concerns copying information in order to create something new. Creating a scholarly work often means invoking other works, sometimes through quotation, when the newer scholar wishes either to make a point or to refute one.” This aspect of research, Meera notes, is “akin to review or criticism, both are permissible uses under fair dealing.” I agree.

UBC’s statement that “As understood in the context of the fair dealing exception, the research purpose does not contemplate distribution to the public (i.e., publication of your research)” is plainly wrong. The Supreme Court in SOCAN v Bell Canada held that commercial online music provider who offered previews of songs to which their customers could listen before deciding whether to purchase the song engaged in fair dealing for the purpose of research. If Apple can safely rely on fair dealing for the purpose of research when it allows any member of the public to listen to a preview it is hard to see why a graduate student who deposits a copy of her thesis in an institutional repository or submits it to Library and Archives Canada does not fairly deal with the works excerpted in the thesis.

User for the purpose of research must carry with it the right to publish the fruits of such research”

EJ MacGillivray, The Copyright Act, 1911 Annotated (1912)

UBC’s statement reminded me, by way of contrast, the statement made by EJ MacGillivray who, in his 1912 annotation of the newly enacted UK Copyright Act, 1911, that “[u]ser for the purpose of research must carry with it the right to publish the fruits of such research”, adding that “[t]he liberty of fair dealing by way of research is probably intended to express the whole of the existing case law on the meaning of fair use.”

Moreover, when a graduate student incorporates other materials in her thesis, she might not even have to rely on fair dealing because the thesis is not merely an imitation of the work it quotes but typically a new, original, and very different work. The graduate student does not simply reproduce the originality of any of the quoted authors, but use those works to create a new and original expression of her own. As the Supreme Court explained in para 40 of its Cinar v Robinson decision from 2013: “If the differences [between the copied work and the new work] are so great that the [new] work, viewed as a whole, is not an imitation but rather a new and original work, then there is no infringement.”

Two additional observations: First, if, as UBC seems to believe, Canada’s copyright law prevents an author from publishing a work containing quotations from other works without the permission of the owners of the copyright in those works, this would be inconsistent with Canada’s obligations under Article 10(1) of the Berne Convention. That Article requires all member states to permit the making of “quotations from a work which has already been lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose…”.

In contrast to other limitations in the Berne Convention, which parties to Berne are free to implement but are not required to, Article 10(1) is mandatory. It creates an obligation with which Canada must comply.[1]

Of course, the Berne Convention is not on its own part of Canadian law and Parliament may enact laws the fail to comply with Canada’s international obligations. However, when courts interpret legislation they are required, to the extent possible, to prefer an interpretation compatible with Canada’s treaty obligations over interpretation that would result in violating them.

Second, like all legislation, the Copyright Act must be consistent with the Charter of Rights and Freedom. If, as UBC seems to believe, Canadian copyright law only permits researchers to conduct research but gives copyright owners the power to prevent researchers from publishing the fruits of that research, it is hard to see how such a law would not create an unconstitutional limitation on Canadians’ freedom of expression.

Happy Fair Dealing week!

UPDATE (March 10, 2020): I am pleased to post the following response from UBC:

“Our Library and Legal Counsel are aware of the outdated language and have been working over the last few months to modernize and revise the page and expect to have this update posted shortly.”

[1] Lionel Bently & Tanya Alpin, “Whatever became of global, mandatory, fair use? A case study in dysfunctional pluralism” in Is Intellectual Property Pluralism Functional? (Suzy Frankel, ed) (Cheltenham, UK: Edward Elgar, 2019) 8.

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