Fair Use 2.0: The Rebirth of Fair Dealing in Canada

Abstract

This Chapter recounts the history of fair use and fair dealing. It traces the shared common law origins of fair use and fair dealing in English and American copyright law, and shows that the enactment of the 1911 UK Copyright Act - the basis for current copyright laws of most Commonwealth jurisdictions - was not designed to cause any major alteration in the common law of fair dealing. The historical record shows that the distinction between US-style open-ended fair use and fair dealing as a myth: the codification of fair dealing in 1911 was not designed to limit its application to the enumerated purposes included in the statute. The question of whether the list of enumerated purposes is exhaustive or, instead, illustrative of a broader principle has never been put squarely before the courts, let alone the higher courts, and certainly not in Canada. Therefore, the question of whether fair dealing in Canada can apply to purposes that are not explicitly mentioned in the Copyright Act is an open one, and as this Chapter shows, can and should be answered affirmatively. Doing so will not transplant a foreign legal concept. Rather, it will reunite present copyright doctrine with its rich and historic roots that were latent but never discarded. Embracing an open-ended fair dealing is the only logical application of the Supreme Court of Canada latest decisions and Parliament’s action, and the only interpretation of the Act that can be internally, historically, and constitutionally coherent.