The Fair Dealing Exception Explained: A 20 Year Retrospective

Fair Dealing for the Purpose of Education: York University v The Canadian Copyright Licensing Agency

A Review of: Henderson, S., McGreal, R., & Vladimirschi, V. (2018). Access Copyright and fair dealing guidelines in higher educational institutions in Canada: A survey. Partnership: The Canadian Journal of Library and Information Practice and Research, 13(2), 1-37. https://doi.org/10.21083/partnership.v13i2.4147 Abstract Objective – To investigate the interpretations of fair dealing applied across Canadian post-secondary educational institutions outside of Quebec and to determine whether such institutions have a licence with Access Copyright. Design – Descriptive/quantitative study. Setting – Canadian post-secondary education sector, excluding Quebec. Subjects – A total of 159 Canadian post-secondary institutions outside of Quebec, including 75 universities and 84 colleges. Methods – A list of Canadian post-secondary educational institutions outside of Quebec was compiled. Data from participants relating to the research objective—reliance on an Access Copyright licence or use and interpretation of fair dealing—was collected via internet searches or, if unavailable online, via direct telephone communication with participants. Main Results – A majority of Canadian post-secondary educational institutions outside of Quebec, approximately 78% (124 institutions), did not have a licence with Access Copyright. The smaller the institution, the likelier it was to have an Access Copyright licence. This was in part linked to the fact that smaller institutions typically do not have staff specializing in copyright; savings from terminating Access Copyright licences (charged on a per student basis) would not justify the creation of such positions. Regarding fair dealing, 18% of study participants based their approach on the Supreme Court of Canada’s six-factor test (29 institutions), while 53% applied the fair dealing guidelines created by Universities Canada (85 institutions). Conclusion – Most of the institutions studied did not have Access Copyright licences and were relying on fair dealing instead, suggesting a bellwether for the copyright climate in the Canadian higher education sector towards fair dealing. Institutions may benefit from a future national consensus regarding interpretations of fair dealing concepts.

Introduction by Michael Geist Standard of Review and the Courts 1. Of Reasonableness, Fairness and the Public Interest: Judicial Review of Copyright Board Decisions in Canada's Copyright Pentalogy - Graham Reynolds 2. Courts and Copyright: Some Thoughts on Standard of Review - Paul Daly 3. The Context of the Supreme Court's Copyright Cases - Margaret Ann Wilkinson Fair Dealing 4. Fair Use 2.0: The Rebirth of Fair Dealing in Canada - Ariel Katz 5. Fairness Found: How Canada Quietly Shifted from Fair Dealing to Fair Use - Michael Geist 6. The Arithmetic of Fair Dealing at the Supreme Court of Canada - Giuseppina D'Agostino 7. Fair Dealing Practices in the Post-Secondary Education Sector after the Pentalogy - Samuel E. Trosow 8. Fairness of Use: Different Journeys - Meera Nair Technological Neutrality 9. Technological Neutrality: (Pre)Serving the Purposes of Copyright Law - Carys J. Craig 10. Technological Neutrality in Canadian Copyright Law - Gregory R. Hagen Copyright Collective Management 11. Copyright Royalty Stacking - Jeremy de Beer 12. The Internet Taxi: Collective Management of Copyright and the Making Available Right, after the Pentalogy - Daniel Gervais The Scope of Copyright 13. Righting a Right: Entertainment Software Association v. SOCAN and the Exclusive Rights of Copyright for Works - Elizabeth F. Judge 14. Acknowledging Copyright's Illegitimate Offspring: User-Generated Content and Canadian Copyright Law - Teresa Scassa

Information about the acceptance by Canadian Higher Education Institutions (HEI) of the Access Copyright (AC) tariff is important for educators even though only a minority of HEIs in Canada have committed to the AC tariff. In addition, the copyright “pentalogy,” the five major decisions of the Supreme Court of Canada (SCC), and its interpretation of fair dealing has become relevant for the institutions, faculty and students. Many universities and community colleges in Canada have adopted the Universities Canada (UC) guidelines on fair dealing, while some have adopted the “six-point test” as their guideline. In some cases, institutions have not adopted any policy or guidelines on any aspect of copyright. This paper will investigate these issues to provide one view of the behaviour Canadian HEIs exhibit in their adherence to AC and their use of policy and guidelines at their institutions.

According to conventional wisdom, a fundamental difference exists between the American fair use doctrine and the Canadian fair dealing doctrine (or that of other Commonwealth countries): while American fair use can apply potentially to any purpose, fair dealing could only apply to the explicit purposes enumerated in the statute. Accordingly, the argument goes, fair dealing cannot apply to dealings for unenumerated purposes no matter how fair they might be. This conventional wisdom is false. When the UK Parliament first codified the doctrine of fair use eleven decades ago, it had no intention to restrict or limit its application, adaptation and adjustment by the courts. The UK Parliament (and presumably the legislators of other Commonwealth countries that enacted copyright statutes based on the UK Act) sought to codify a principle, an open, flexible, and general standard, not precise rules, and had no intention to prevent its application to purposes beyond those specifically mentioned in the statute. Unfortunately, the English courts, in a series of early post-codification failed to recognize this point have sentenced fair dealing to a hundred years of stagnation. Fortunately, at the turn of the twenty-first century the Supreme Court of Canada declined to follow that restrictive path. The Canadian Parliament’s decision to explicitly recognize additional purposes in 2012 and add other specific exceptions moves Canadian law in the same direction. The Court’s rulings and Parliament’s action have entrenched fair dealing and provided a necessary correction that allows fair dealing to resume the role it was always supposed to play. Yet, if conventional wisdom is correct, some uses, present or future, are still categorically excluded. This is not a recipe for progress. In a legal environment that outlaws novel ways of using, reusing and disseminating works outright, fewer new forms of expression will emerge. Fortunately, there is no serious indication that Parliament intended to so restrict the application of fair dealing when it codified it, and there are very good reasons—as a matter of statutory interpretation and policy—contradicting the view that it did have such intention. This chapter, adapted from an earlier piece written in 2013, explains those reasons, and includes additional evidence beyond those discussed in the earlier piece. It debunks the Fair Use vs. Fair Dealing myth and shows that an open, flexible, and general fair dealing is already here. It always has been.

Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use

Fair Use 2.0: The Rebirth of Fair Dealing in Canada

An Intersectional Approach to Homelessness: Discrimination and Criminalization

“Arbiter of religious dogma,” first expressed by the Supreme Court of Canada in Syndicat Northcrest v. Amselem ([2004] 2 SCR 551), has had a lasting and pervasive effect on the Canadian lawscape. Developed in an effort to remove the State (and therefore Court apparatus) from a decision-making capacity in questions related to religious doctrine, this expression has become an inevitable mantra when discussing issues related to religion in Canada. This article argues, however, that the presence of this expression should not be understood as the end of a conversation, but rather, the beginning of a novel one on the legitimacy of religion in law. Through discourse analysis, this article will endeavor to suggest that this “marriage march” between law and religion is inevitable in the Canadian context.

The tort of misfeasance in public office was recently examined by the Supreme Court of Canada in Odhavj Estate v. Woodhouse. While the case provided a statement on the law in this area, it also left many questions unanswered. This article lays out the factual background of the case, the elements of the tort as laid down by the Court and the tort's relationship with other aspects of Canadian tort law. Further, the author critically examines the ambiguities and additional problems that have arisen in the wake of the decision and how the lower courts have been dealing with the tort in subsequent cases. The author ultimately concludes that it is very likely that the Supreme Court of Canada will need to revisit this area of tort law in the years to come.

Given that continental civil law scholarship applies the concept of good faith in either a subjective (honesty in fact) or objective sense (good faith and fair dealing), the present article focuses on the latter one. The traditional view in England and Wales discards the recognition of a general principle of good faith and fair dealing in English law. English courts have adopted a piecemeal solutions approach (as shown by the judicial decisions issued in Interfoto Picture Library (1987) and Walford v. Miles (1992)). Meanwhile, the principle in question, along with the concept of the freedom of contract, is one of the most important principles of the continental civil law tradition (cf. art. 1104 of the French Civil Code, § 157, § 242 of the German Bürgerliches Gesetzbuch, art. 2 (1) of the Swiss Zivilgesetzbuch, art. 6:2 Burgerlijk Wetboek, art. 5 of the Polish Civil Code, art. 2 (1) Common European Sales Law, art. 1:201 Principles of European Contract Law, art. III1:103 Draft Common Frame of Reference). The current work analyzes recent English case law (in particular Yam Seng (2013)), which seems to acknowledge the principle of good faith and fair dealing while rejecting the traditional view mentioned above. The comparative approach — references to American, and Commonwealth law, as well as to that of particular European states — is taken into account. The author claims that hostility to the concept of good faith in an objective sense in English law is superficial. One may expect that in the near future courts in England and Wales will follow the path taken by courts in the United States (§ 205 of the Restatement (Second) of Contracts (1981)), Australia (Renard Constructions (1992)) and Canada (Bhasin v. Hrynew (2014)), and they will finally recognize good faith as an underlying principle.

Mr. Daviault, a 72-year-old alcoholic, was charged with dragging a 65-year-old woman from her wheelchair and sexually assaulting her. This occurred after Mr. Daviault had consumed eight beers and 35 ounces of brandy. The majority of the Supreme Court of Canada (S.C.C.) allowed evidence of intoxication to be presented as a to this general intent offense. The S.C.C. held that evidence of intoxication was available in situations where the accused could establish that the act was not voluntary or the requisite intent was not formed as a result of a state of intoxication akin to insanity or automatism. This created an exception to the general rule that evidence of was allowed to be presented as a only to specific intent offenses. As a result of the decision in Daviault,1 evidence of intoxication could be presented as a to offenses of both specific and general intent. Daviault and decisions that followed Daviault2 illustrate the problem Parliament faced: that an accused may lack the blameworthy mental state necessary to convict him of assault but certainly not be morally blameless. Outcries from society demanded immediate legislative changes. Parliament responded quickly by introducing Bill C-72,3 an amendment to the Criminal Code intended to undo the change in the law that resulted from the S.C.C. decision in Daviault. Parliament proposed to return the law to its previous state by making it clear that the of was not available to any general intent offenses regardless of the level of intoxication. This paper puts the proposed amendment into context and evaluates Bill C-72 under the Canadian Charter of Rights and Freedoms.4 The first section of this paper deals with the case law background of how criminal law has dealt with the intoxicated offender. The second section takes a detailed look at Parliament's suggested solution, Bill C-72. Sections three through five give an analysis of the Charter rights that may be infringed by the bill and evaluates the bill's chance of surviving a Charter challenge under s. 1. I: The case law before and after Daviault A) The law before5 the decision in Daviault It is common to talk of the defense of drunkenness; however, is not a defense. The more accurate terminology would be that there was a lack of mens rea. In this paper the term defence of drunkenness is used, but it is important to remember that evidence of intoxication has the effect of calling into question whether an essential element of the offense has been proved. If the Crown is unable to convince the trier of fact beyond a reasonable doubt of all the essential elements of the offense, then the accused must be acquitted. The law draws a distinction between crimes that require specific intent and crimes that require only general intent. A general intent offense requires such a minimal mental element that the voluntary act itself could satisfy the necessary intent component. Drunkenness was believed to be incapable of negating this minimal intent. For a specific intent offense, the accused must be able to form the more specific intent that is set out in the Criminal Code. This specific intention cannot be inferred from the act. If a person's mind is severely clouded by alcohol or drugs to the point that he or she lacks the ability to form the specific intent to commit the crime, the accused must be acquitted. Before Daviault, evidence of intoxication was allowed before the trier of fact in relation to only specific intent offenses. General intent offenses required such a minimal mental element that the voluntary act itself could satisfy the necessary intent component. Extreme intoxication had been raised before in the S.C.C., but only in side comments.6 The issue of extreme intoxication as a in general intent offenses was unresolved. The S.C.C. was given the opportunity to provide an answer to this question in Daviault. …

Canada’s government structure has long used the idea of Peace, Order, and Good government to justify the selection and subsequent terms of long political majorities and appointed justices. This paper will be addressing the research question: should the justices of the Supreme Court of Canada be elected to increase Canadian democratic values or should they remain appointed? Currently the Supreme Court of Canada is selected by the Governor General on the advice of the Prime Minister. In answering this research question this paper will weigh to the pros and cons of both the current judiciary system and a judiciary section based on elections in order to prove that Supreme Court of Canada justices should stay appointed. A crucial factor in the selection of supreme court judges is the idea of judicial independence. Justices are not elected in order to ensure that there is no partisanship or inappropriate relationships between the judiciary and the legislature. It is argued that this is null and void as a result of the fact that the judges are effectively chosen by the head of government. In the Canadian system, there lies an important balance between the executive, legislative, and judicial branches; this balance of power relies heavily on the Supreme Court being a non-partisan last check on any bills that reach it from the House. This is contrasted by the fact that the Supreme Court of Canada has last say on a plethora of issues that affect the lives of all Canadians and Canada is a constitutional monarchy, meaning that the power is always supposed to be derived from the people. Any power of government in Canada must trace its power back to the people for it to be considered legitimate. After a compare and contrast of the effect that electing the Supreme Court of Canada will have on the judicial independence and the federal balance of power it is hypothesised that the Supreme Court of Canada should continue as an appointed body.

Copyright law grants exclusive rights to authors of original works of authorship, but those rights are subject to numerous exceptions and limitations, including fair use in the United States and fair dealing in Canada. These exceptions have traditionally worked to ensure that the rights of copyright owners are adequately balanced with the interests of subsequent authors, researchers, and consumers of copyrighted works. Moreover, fair use has emerged as the most promising legal mechanism for the digitization, preservation, and study of large collections of copyrighted work. Fair use and fair dealing provide much of the flexibility needed to ensure that copyright protection serves to facilitate scholarship rather than threaten it. Scholars encounter copyright law both as authors and as users of copyrighted works. With an eye toward the future, this panel will examine the extent to which the discourses and practices of the past decade have contributed to shaping and reshaping our scholarly environment, how the information field has responded, and why and how information scholars, researchers and professionals ought to remain engaged in these matters in the future.

This article takes an in-depth look at the law clerks and the role they play at the Supreme Court of Canada. Such an examination both informs prospective clerks on the nature of the position and promotes a better general understanding of how the judicial process operates at this level. The authors begin their analysis by looking at the history of the law clerks at the Supreme Court. Although the functions of the clerks have changed little since their introduction in 1968, the clerkship program has evolved with a changing Supreme Court, contributing to the institutions "coming of age." The authors then shift their attention to examining the present clerkship program. The article first reveals the manner in which the clerks are selected by the Court. Using data collected by a questionnaire sent to clerks of the 1991-93 terms, the authors also attempt to convey, in a general way, some sense of the people who have served at the Court in recent years. Next, the major functions performed by the clerks are described. While the clerks do have a great deal of responsibility, the authors dispel much of the criticism directed at United States Supreme Court clerks by stating that the law clerks at the Supreme Court of Canada do not have an improper degree of authority. The authors conclude that the clerking experience benefits both the clerks themselves and the procedures of the Court. As such, the law clerks are an entrenched and indispensable part of the judicial process at the Supreme Court of Canada.