Exceptions (Copyright Primer – Part 2)

In past we explored the storied heights of human creativity and the unstoppable thrust of art into modern capital markets as a foundational aspect of human value. In support of that value we have enacted copyright laws which grant a monopoly to creators in the exploitation of their works. As the name suggests, copyright bestows onto authors the sole right to copy or exploit (or to authorize others to copy or exploit) their protected works.

We also explored how copyright laws try to strike a balance between the rights of creators, on the one hand, and the rights of society at large on the other. While copyright itself lands squarely in favour of creators, there are exceptions to copyrights which are intended to preserve broader social interests. These exceptions allow people in certain circumstances to reproduce and use works without permission from the copyright holder.

In Canada, the exceptions to copyright are not defences to allegations of copyright infringement. Instead, they carve certain usage out from application of copyrights—so that using copyright-protected material in the specific ways described in the Copyright Act (the “Act”) does not infringe copyright to begin with.

The Supreme Court of Canada put it this way (referring to the ‘fair dealing’ exception of s.29 of the Act):

Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. (CCH Canadian Ltd v Law Society of Upper Canada, [2004] 1 SCR 339 p.48)

Indeed, s. 29 of the Act sets out that:

Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

While it is not evident from the Act what ‘fair dealing’ actually is, the Supreme Court has provided some analysis in the CCH decision quoted above (reaffirmed in subsequent cases). That case addressed a dispute between the Law Society of Upper Canada and a book publisher in which the publisher alleged that the Law Society was infringing its copyrights by permitting patrons to photocopy its books in the Law Society’s Great Library.

The Court noted, quoting a 1972 decision of the UK’s Court of Appeal (Hubbard v. Vosper, [1972] 1 All E.R. 1023 (C.A.)):

It is impossible to define what is ‘fair dealing’. It must be a question of degree. You must consider first the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be a fair dealing. If they are used to convey the same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair. Other considerations may come to mind also. But, after all is said and done, it must be a matter of impression. As with fair comment in the law of libel, so with fair dealing in the law of copyright.

The Court ultimately held that the Law Society was within its rights and was not infringing the copyrights of CCH. In doing so, it established the main criteria to consider when determining fairness:

. . .the purpose of the dealing, the character of the dealing, the amount of the dealing, the nature of the work, available alternatives to the dealing and the effect of the dealing on the work are all factors that could help determine whether or not a dealing is fair. These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing. In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair.

So while ‘fairness’ is not necessarily definable and will need to be determined in each case, there are criteria to consider when making the determination. It is important to note, as did the Supreme Court in the case of Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), [2012] S.C.J. No. 37, that the criteria set out in CCH are not statutory requirements, but they merely “help assess whether a dealing is fair.”

So is this even helpful? The statutory framework permits the ‘fair use’ of certain material but does not define what ‘fair’ is, opting instead to leave that in the hands of the arbiter. Anyone who has observed a high school hockey game, and the passioned cries against the otherwise fair-minded official who miscalls a play, will immediately realize that our ideas of what is ‘fair’ can vary considerably from person to person.

Moreover, courts have interpreted the ‘fairness’ criterion in ways that still favour copyright owners over public users. Take, for example, the recent decision of the Federal Court of Canada in Canadian Copyright Licensing Agency v York University, [2017] FCJ No 701. That case related to the use by York University students of certain course materials and textbooks, and the fact that some professors did not charge (or pay to copyright holders) royalties for student copies. York argued that the royalties should not be payable since the student copies were made under the fair dealing exception for the purpose of research or private study. York had even published guidelines for its students under which it allowed students to copy up to 10% of a book per course of enrolment.

The court held that “wide-ranging, large volume copying tends toward unfairness” because it “is likely to compete in the market for the original works” thereby diminishing the economic value of the original works. As a result, the dealing in this case was not ‘fair’ and the fair dealing exception did not apply. The takeaway is that despite users’ rights being theoretically important, “importance does not equate with exclusivity or dominance.”

Under the fair use exception, in addition to being ‘fair’ the use of copyrighted material must only be for purpose listed in the Act: research, private study, education, parody or satire. As is evident from the York case, determining such purpose may be relatively straight forward, but the ‘fairness’ criterion will always present some uncertainty. As such, users would be well advised to take a restrictive view of fairness and to use as little of the source work as possible in the circumstances.

When comparing the nature of competing grants under the Act, one thing becomes abundantly clear: original copyright grants are, in general, much simpler to understand and manage than many exceptions (one notable exception to this is the non-commercial user-generated content exception under s. 29.21 – discussed in detail below). Whether a person created an original work might be relatively easy to see and prove; but determining whether someone else’s unauthorized use of that work is ‘fair’ is altogether more complicated.

This creates a disincentive to rely on exceptions. Given the relatively high cost and inconvenience of litigating, some users may understandably choose to simply avoid all use of third-party materials—despite having exceptions readily available.

The exceptions under the Act fit into 2 loose categories: general exceptions and special exceptions. The general exceptions are available to any person at any time provided the listed requirements are met. The special exceptions (which we’ll review in a later blog) are only available to certain institutions and not to the general public.

General Exceptions

The general exceptions include:

1. fair dealing for the purpose of research, private study, education, parody or satire (s.29);
2. fair dealing for the purpose of criticism or review (s. 29.1);
3. fair dealing for the purpose of news reporting (s. 29.2);
4. reproduction for private purposes (s. 29.22); and
5. reproduction for later listening or viewing (s. 29.23)

In 2012, the Act added a new exception for non-commercial user-generated content. Under this ‘social media’ exception (s. 29.21) you can post copyrighted material from third parties in your social media without authorization from the original owner IF:

1. the new work (i.e. social media post) is created strictly for non-commercial purposes;
2. the source and additional information about the author, performer, maker or broadcaster (if given in the source) are mentioned;
3. the individual creating the new work must have reasonable grounds to believe that the existing work was, itself, not infringing the copyrights of others; and
4. publication of the third party work must not have a substantial adverse effect on the market of the original work.

While the copyright exceptions are intended to open certain access to otherwise restricted materials, in practice they can create unexpected problems for the parties. In many cases, a person relying on an exception will not be certain that their use of the subject material is acceptable – since they rely on words like ‘fair’ or ‘private’ which can have different interpretations.  It is a good idea for anyone relying on an exception in using copyrighted materials to document their intentions in doing so (as well as sources and authors, if the information is available) and to avoid any hint of commercial exploitation, which can quickly throw any notion of fairness out the window.

Next, we’ll explore what I referred to as the special exceptions under Canada’s copyright laws.