On Friday, February 21, DLA Piper and the Harold G. Fox Moot Organizing Committee presented, The 2020 Fox Intellectual Property Lecture. Professor Lionel Bently, of the University of Cambridge and Co-Director of the Centre for Intellectual Property and Information Law, delivered a lecture entitled “Global, Mandatory Fair Use”. The lecture was accompanied by a lunch for students who would later participate in the Harold G. Fox Moot at the Federal Court.

Through references to films like Titanic and The Clock, Professor Bently spoke about the importance of fair dealing and ensuring that courts are not interpreting these provisions in an unduly restrictive manner.

Fair Dealing Exception

One of the exemptions parties may be afforded in the case of infringement is the fair use (the similar doctrine in the United States) or fair dealing (the doctrine in Canada) exception. On the surface, both doctrines animate similar principles, such as “character of the dealing”, however some authors argue that the fair dealing doctrine is far more amenable and expansive compared to fair use. Fair dealing is a statutory exception to a copyright infringement, whereby the user is able to exercise rights in respect to copyrighted material belonging to an owner. Many scholars in favor of fair use find the fair dealing doctrine to be too amenable, making greater expansion, as Professor Bently advocates for, all the more difficult.

This defence provides an opportunity for users to defend a prima facie infringement, provided it is deemed to fall into the purview of sections 29.1 or 29.2 of the Copyright Act. Simply put, an individual can copy from a copyright protected work, without permission, provided the copy is for one of the enumerated purposes. Among these enumerated grounds are allowances for research, private study, education, parody, satire, criticism or review, and news reporting. Additionally, the dealing must be “fair”, as determined by the courts.

The Judicial and Legislative Expansion of Fair Dealing Under Canadian Law

Section 3(1) of the Copyright Act lists the rights of the copyright owner. Among other things, the Act, in the same section, defines a copyright as “the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof”.

In response to this, Professor Bently probed at what truly constitutes a “substantial part”. Does a two-second sample constitute a substantial part, as was discussed in c-476/17, Hutter v Pelham? The court held, “sampling without authorisation can infringe a phonogram producer’s rights. However, the use of a sound sample taken from a phonogram in a modified form unrecognisable to the ear does not infringe those rights, even without such authorization.” Focusing on Canadian courts, the decision in CCH Canadian defends an expansive approach to fair dealing. The court quotes professor David Vaver who states, “user rights are not just loopholes. Both owner rights and user rights should therefore be given fair and balanced reading that befits remedial legislation.”

 The Quotation Right in the Berne Convention

Adopted in 1886, the Berne Convention is concerned with the protection of works and the rights of their authors. The Convention sets the minimum protections to be afforded to countries who are signatories - Canada is one of these countries.

Article 10(1) of the Berne Convention states, “It shall be permissible to make 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…”. Professor Bently argues that despite the clarity and strength of the language used (“shall be permissible”), Article 10 has been largely overlooked. Expanding the application of fair dealing in Canada will require a more literal interpretation of this provision. 

Implications: Global, Mandatory Fair Use

In closing, Professor Bently states that Canada should extend its fair dealing exceptions further to permit quotation of all works for any other purpose. Despite the likelihood of dissent from the international community, as the expansion of fair dealing could mean undermining copyright holders’ rights, expansion remains a necessary step forward to prevent artistic expression from being unduly restricted by law.

Written by Jason Clarke, a third year JD Candidate at Osgoode Hall Law School. Jason is also a Clinic Fellow at IP Osgoode Innovation Clinic.