A Comparative Study of 'Fair Use' in Japanese, Canadian and US Copyright Law

Abstract

A key element of the copyright balance between creators and users is the doctrine of fair use (or dealing). Pursuant to this doctrine, use of a copyrighted work does not constitute infringement, so long as such use is “fair”. This paper explores the commonalities and differences between Canadian, American and Japanese approaches to fair use and, in particular, focuses on the latitude offered under each system for parodies of copyrighted works. We argue that users in the United States are granted considerable freedom to create parodies as a result of the broadly worded copyright legislation combined with the accommodating approach taken by American courts. The Japanese legislation also provides a potentially broad exception. However latitude for Japanese parodists is narrowed considerably because of the refusal of courts to tolerate an infringement of moral rights. The statutory exception in the Canadian legislation is the narrowest of the three, and courts originally read it strictly when dealing with parodists. However, recent cases raise the possibility that Canadian courts may now take a more lenient approach.