Pursuing The Balance In Copyright

An earlier version of this article was published by SLAW.

One of the most important recent cases of the Supreme Court of Canada in the field of copyright law has been CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, in which the Court breathed real meaning into the fair dealing exception, now called a user's right. CCH was preceded by Théberge v. Galerie d'Art du Petit Champlain inc., [2002] 2 S.C.R. 336, where the Supreme Court of Canada explained that copyright law provides a balance between creators and users, namely: "the purpose of copyright law was to balance the public interest in promoting the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator". CCH took that a step further and defined the fair dealing user's right.

The Supreme Court has continued to pursue this balanced approach to the law and in five copyright judgments provided additional substance to the fair dealing right and a richer understanding of how to address the copyright system. The decisions deepen the understanding of the fair dealing user's right, the communication right in a digital context and one of the decisions clarifies the role of a sound recording in a cinematographic work.

In Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, the Supreme Court was addressing the issue of whether teachers making multiple copies of excerpts of textbooks and other works for their student's instruction came within the fair dealing exception. The Court observed that fair dealing is a "user's right", and the relevant perspective when considering whether the dealing is for an allowable purpose under the first stage of CCH is that of the user.

Applying the two-step test for fair dealing under CCH, there was no dispute that the first step of the test set out in CCH was met and that the dealing (the photocopying) was for the permitted purpose of research or private study. The issue was the assessment of the teacher's conduct in acting on their own initiative and making copies for the students and whether that conduct met the fairness test. The Court reviewed a number of fairness factors: the purpose, character, and amount of the dealing; the existence of any alternatives to the dealing; the nature of the work; and the effect of the dealing on the work.

In these facts the Court found that there was no separate purpose of the teacher nor can teachers be...