∗

WHY CANADA SHOULD NOT ADOPT FAIR USE

A JOINT SUBMISSION* TO THE COPYRIGHT

CONSULTATIONS

This submission addresses the issue of fair use, in both the

traditional sense, and in the sense of an expanded and more
flexible fair dealing regime. Fair use should not be adopted as it
leads to uncertainty, expensive litigation, and leaves important
public policy decisions to be made by courts instead of
Parliament. Further, fair use would reduce revenues available to
creators, (which, in turn would reduce the capacity of creators
to innovate), while potentially undermining legitimate collective
licensing models. Fair use may also be inconsistent with
Canada’s international treaty obligations. Finally, in light of
international experience rejecting the adoption of fair use it
would be imprudent for Canada to do so absent, at the very
least, greater study.

1. INTRODUCTION

This paper is jointly submitted by over fifty

prominent Canadian organizations, who represent
hundreds of thousands of artists, choreographers,
composers, directors, educators, illustrators, journalists,
makers, musicians, performers, photographers,
playwrights, producers, publishers, song writers,
videographers, and writers working in Canada.1 We
submit this paper because we believe Canada should not
adopt a new fair use provision.


© 2009 Barry Sookman and Dan Glover of McCarthy Tétrault. The
research assistance of David Deutsch and Ryan Prescott of McCarthy
Tétrault is gratefully acknowledged.
*
Written by Barry Sookman and Dan Glover of McCarthy Tétrault. For a
full list of the signatory organizations, as of October 23, 2009, see
Appendix A. This paper is a revised version of the Copyright
Consultation Submission of September 15, 2009.
1
More information on the mandates and activities of the signatory
organizations can be obtained via the websites listed in Appendix A.
 It is universally acknowledged that protections for
copyright should not be absolute. There are
circumstances dictated by justifiable policy considerations
where exceptions and limitations to copyright are
warranted.2 The Supreme Court has ruled that exceptions
to copyright, including the fair dealing provision, are an
integral part of the Copyright Act.3
In the latest round of copyright consultations,
advocates of copyright liberalization have made calls to
replace Canada’s longstanding fair dealing provisions with
a general fair use provision.4 Alternatively, these
advocates have argued that the fair dealing provisions
enumerated in the Copyright Act, such as the “research or
private study” and the “criticism or review” provisions,
should be treated as merely “illustrative” examples of
allowable exceptions. The most common proposal to
achieve this result is to insert the term “such as” into the
current fair dealing provisions. This “expanded fair
2
Canada, Supporting Culture and Innovation: Report on the Provisions
and Operation of the Copyright Act (2001) [“Section 92 Report”] at 7,
stating “access to culture and the dissemination of information remain
important public policy objectives for Canadians. Limitations and
exceptions to copyright protection strive to balance the rights of
copyright owners with the access considerations of certain users”; Also
see EC, “Green Paper: Copyright in the Knowledge Economy”,
COM(2008) 466 final (16 July 2008) ([the “UE Green Paper”] at 4; U.K.,
UK Intellectual Property Office, Taking Forward the Gowers Review of
Intellectual Property: Proposed Changes to Copyright Exceptions
(Newport: Concept House 2008) [“Taking Forward Gowers”] at para.
26, rejecting an earlier possibility raised by the 2006 Gowers Review of
Intellectual Property, at 4.68-4.71; Austl., Commonwealth, Attorney-
General, Copyright Amendment Bill 2006: Explanatory Memorandum at
3 [“Explanatory Memorandum”]; N.Z., Digital Technology and the
Copyright Act 1994: Internal Working Paper (online:
<http://www.med.govt.nz/upload/2429/working.pdf>, July 2002)
[“Internal Working Paper”] at para. 241.
3
CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R.
339 at para. 46 [CCH].
4
See Michael Geist, “Designing A Copyright Law That’s Built To Last”
Toronto Star (17 August 2009), online: Toronto Star <
http://www.thestar.com/sciencetech/article/682006>; Jeremy de Beer,
“Respect and Reality Are Keys to Reform” National Post (6 August
2009), online: < http://www.jeremydebeer.ca >; Laura J. Murray,
Ottawa Roundtable (31 August 2009), online: FairCopyright.ca
<http://www.faircopyright.ca/?p=217> as examples of the “fair use” or
“expanded fair dealing” provisions being sought by user interest
groups. Of position papers filed to date in the 2009 process, that of the
Canadian Internet Policy and Public Interest Clinic, affiliated with the
University of Ottawa, is representative of the amendments sought.
dealing” proposal would have a similar effect to
implementing a fair use provision, as it would create an
open-ended system allowing users to argue that any
given purpose is “fair”.5
These proposed amendments are not needed.
Canada already has broad and flexible fair dealing
provisions. Pro-reform advocates have acknowledged
that the Supreme Court of Canada’s landmark fair dealing
decision in CCH6 “instantly ranks as one of the strongest
pro-user rights decisions from any high court in the
world.”7
Moreover, these proposals would go in precisely the
wrong direction. At a time when most stakeholders are
calling for greater certainty and clarity in Canadian
copyright law, these proposals to replace the specific fair
dealing provisions that Parliament has established with
broad, open-ended “user rights” would leave copyright
owners and users guessing where copyright ends and
“user rights” begin.
The fair use model is not a panacea for solving
difficult problems resulting from digitization and the
internet. “Fair use” has been described as an
“astonishingly bad” system amounting to little more than
“the right to hire a lawyer”.8 Fair use and/or expanded
fair dealing systems are models that many of our trading
partners including the United Kingdom, the European
Union, Australia and New Zealand have expressly
rejected. So did Canada when it last considered
introducing an expanded fair dealing or fair use provision
into Canadian law. In fact, of the 164 countries that are
members of the Berne Convention, only four have
implemented it.9

5
Jeremy de Beer and Michael Geist, “Developing Canada’s Intellectual
Property Agenda” in Jean Daudelin & Daniel Schwanen eds., Canada
Among Nations (Montreal: McGill-Queen’s University Press, 2007) 157
at 177.
6
CCH, supra note 3.
7
Michael Geist, “Low-tech case has high-tech impact” Toronto Star (22
March 2004), online: <
http://www.michaelgeist.ca/resc/html_bkup/mar222004.html >.
8
Lawrence Lessig, Free Culture (New York: The Penguin Press, 2004) at
187 [Lessig]. He is not alone among U.S. prominent reformists in
concluding that fair use is a broken system. See Section 2(c) below.
9
,The World Intellectual Property Organization “Berne Contracting
Parties”, online: The World Intellectual Property Organization
 Far from solving copyright problems, adopting fair
use would only exacerbate them. Its drawbacks are
numerous. Fair use would lead to uncertainty, expensive
litigation and leave important public policy decisions to be
made by courts instead of Parliament. It would reduce
revenues available to the Canadian creative industries;
revenues which are vital to their indigenous growth. It
would undermine legitimate licensing models including
collective licensing of copyrights.
By expanding what can be done without
infringement, fair use could also significantly undercut the
existing private copying levy as well as prospects for
extending that levy to new media such as Digital Audio
Recording Devices (DARs) and to content other than
music. It would leave uncertain what uses of works are
permissible in a variety of other settings as well, such as
uses in libraries and educational institutions.
Creating an expanded fair dealing or fair use model
could also put Canada off-side its treaty obligations, which
require that exceptions comply with the three-step-test.10
The Government should not amend the Act to
introduce a fair use or expanded fair dealing model into
Canada. At the very least, it should not do so without
further detailed consideration of its potential adverse
effects.11

2. INTERNATIONAL STANDARDS FOR EXCEPTIONS AND LIMITATIONS

<http://www.wipo.int/treaties/en/ShowResults.jsp?
lang=en&treaty_id=15>. The only fair use regimes are the United
States, Israel, Singapore, and the Philippines.
10
Under the Berne Convention, TRIPS and NAFTA, Canada agreed to
confine limitations or exceptions to certain special cases that do not
conflict with a normal exploitation of a right or unreasonably prejudice
the legitimate interests of authors or right holders. See section 4(b)
below. Berne Convention for the Protection of Literary and Artistic
Works, Sept. 9, 1886; revised July 24, 1971 and amended 1979, 1
B.D.I.E.L. 715 [Berne Convention]; Agreement on Trade-Related
Aspects of Intellectual Property Rights, 15 April 1994, 33 I.L.M. 1197
[TRIPS]; North American Free Trade Agreement Between the
Government of Canada, the Government of Mexico and the
Government of the United States, 17 December 1992, Can. T.S. 1994
No. 2, 32 I.L.M. 289 (entered into force 1 January 1994) [NAFTA].
11
In this paper we sometimes refer to “fair use” without referring to an
expanded fair dealing model. Unless the context suggests otherwise
the terms fair use and “expanded fair dealing” are used
interchangeably.
 The dominant approach worldwide in creating
exceptions and limitations to copyright is a closed
approach that identifies specific special uses of works that
do not infringe copyright. By contrast, under the open-
ended fair use model, any reproductions or other uses of
a work can theoretically not be infringing if they are found
by a court to be “fair”. This model has been rejected or
not adopted in almost every country or jurisdiction that
has considered it, including recently in Australia, the
United Kingdom, New Zealand, and the European Union.

A.
THE COMMONWEALTH
While a number of major Commonwealth countries
have considered the possibility of changing their long-
established fair dealing systems to a fair use approach,
each has rejected doing so in favour of incremental
reforms achieved by way of targeted exceptions. In
rejecting fair use, Australia, the United Kingdom and New
Zealand have identified international treaty compliance,
the introduction of uncertainty into longstanding
relationships and the other reasons set out below for
doing so.
i. Australia
Australia thoroughly debated and then rejected
pressures to introduce a fair use or expanded fair dealing
model. The 2005 government issues paper “Fair Use and
Other Copyright Exceptions” (the “Issues Paper”) sought
public consultation on a copyright exceptions reform,
including an expanded fair use right.1 The Issues Paper
depicted the fair use system as an international anomaly
and noted the following drawbacks of the system:
• Any attempt to list the uses that qualify as a
fair use is extremely difficult as the
distinction between fair use and infringement
can be unclear and not easily defined.

1
Austl., Commonwealth, Attorney-General, Fair Use and Other
Copyright Exceptions: An examination of fair use, fair dealing and
other exceptions in the Digital Age (online:
<http://www.ag.gov.au/agd/WWW/rwpattach.nsf/VAP/
(03995EABC73F94816C2AF4AA2645824B)~FairUseIssuesPaper050505
.pdf/$file/FairUseIssuesPaper050505.pdf>, 2005) at 14.1-14.15.
 • The open-ended fair use exception is broader
in scope than the Australian fair dealing
exceptions, which are restricted to specific
purposes.
• There are no clear-cut rules for
distinguishing between infringement and a
fair use. The only way to get a definitive
answer on whether a particular use is a fair
use is to have it resolved in a court.
• Outcomes in fair use disputes can be hard to
predict. Applying the statutory principles
can be difficult for the courts. Fair use cases
have been characterised by decisions in
lower courts that have been overturned in
courts of appeal and reversed again in the
United States Supreme Court.
• Copyright owners may vigorously oppose fair
use claims to ensure that the doctrine does
not expand by increments.
• Defending a fair use claim in court can be
expensive. The defendants in many of the
fair use cases that are fought out in the
courts are corporations with considerable
financial resources.2
In a position paper considering the Issues Paper,
the Intellectual Property Research Institute of Australia
identified additional drawbacks to fair use, including:
• Overclaiming and overcaution: uncertainty
may lead to overcaution, with users seeking
permission even where they almost certainly
do not need it.
• Reaction of courts: U.S. courts are generally
far more inclined to get into ‘policy debates’
than Australian courts, creating uncertainty
about how courts in Australia would react to
a fair use doctrine until case law develops.
• Would it fix the problem? It is unclear
whether fair use would cover all the
problems identified with the Australian law of
copyright exceptions. Because fair use is a

2
Ibid. at 7.9, 7.12.
 court-determined and court-developed
doctrine in the U.S., it is often unclear
whether particular uses would be allowed
even in the U.S. – let alone in Australia if a
fair use defence were introduced.3
The Issues Paper also identified the further risk that
converting to a fair use model could cause considerable
disruption to existing business and licensing
arrangements. It warned that:
If the Government were to consider amendments
it may not be an appropriate solution to simply
‘replace’ the fair dealing exceptions or ‘add on’
an open ended fair use provision. The relationship
of such a provision to other exceptions and
statutory licences in the Copyright Act would [sic]
be carefully considered to avoid problems arising
from any overlap and consequent disruption to
existing business and licensing arrangements.4
Following the release of the Issues Paper, the
government rejected both the fair use and expanded fair
dealing systems in favour of enacting a number of
detailed and specific exceptions designed with particular
institutions and purposes in mind. In so deciding, the
government noted that:
The present system of exceptions and statutory
licences that apply to specific uses of copyright
material […] has been maintained for many years
because it gives copyright owners and copyright
users reasonable certainty as to the scope of acts
that do not infringe copyright.5
By contrast, it stated that adopting the specific exception
method would:
Restore credibility to the Act by better reflecting
public opinion and practices. It is consistent with
current policy in providing specific exceptions
that give certainty for copyright owners and users
with respect to the scope of permitted acts.6

3
Kimberlee Weatherall, “Fair use, fair dealing: The Copyright
Exceptions Review and the Future of Copyright Exceptions in Australia”
(Background paper to oral presentation, SNAPSHOT 3 20 May 2005),
[online: <http://www.ipria.org/publications/occasional
%20papers/Occasional%20Paper%203.05.pdf> at 8-9.
4
Ibid. at 13.6.
5
Explanatory Memorandum supra note 2 at 7.
6
Ibid. at 9.
An extended fair dealing model was considered less
desirable, as:
This approach may add to the complexity of the
Act. There would be some uncertainty for
copyright owners until case law developed. Until
the scope was interpreted by the courts, there
may be disruption to existing licensing
arrangements. Similarly, a user considering
relying on this exception would need to weigh the
legal risk of possible litigation.7
Australia also rejected the fair use and expanded fair
dealing models based on concerns that they do not
comply with the three-step-test mandated by the Berne
Convention and the Agreement on Trade-Related Aspects
of Intellectual Property Rights (“TRIPS”).8 It concluded
that adopting either system “is not consistent with treaty
obligations to include such general uses in a flexible
exception.”9

ii. United Kingdom

The United Kingdom also considered moving to a
fair use or expanded fair dealing model. The 1981
consultative document Reform of the Law Relating to
Copyright, Designs and Performers’ Protection specifically
rejected a proposal to do so.10 The government’s reasons
remain valid today:
The Government is appreciative of the Whitford
desire to simplify the law where possible.
However, for the reasons indicated above, it does
not feel that there is a convincing case for
amending … along the lines suggested and, in
view of the difficulties already experienced by
copyright owners in protecting their rights, the
7
Ibid. at 10.
8
Ibid. at 7-8. Sam Ricketson also praises the predictability of the
Australian exceptions and compulsory licenses, noting that “the very
detail and precision of these provisions makes them more transparent
and easier to analyze.” Ricketson WIPO at 73.
9
Ibid. at 10.
10
Although the Whitford Report recommended the general exception,
it conceded that it was vulnerable to “dangers of producing uncertainty
and misuse”. See: U.K., The Honourable Mr. Justice Whitford, Copyright
and designs law: report of the Committee to Consider the Law of
Copyright and Designs (London: HMSO, 1977).
Report of the Committee to Consider the Law of Copyright and
Designs (1977), at para. 675.
 Government does not feel it would be justified in
making an amendment which might result in
further encroachments into the basic copyright.11
The issue was canvassed again in the UK very recently. In
the 2008 report Taking Forward the Gowers Review of
Intellectual Property: Proposed Changes to Copyright
Exceptions, the UK government rejected moving to an
open-ended fair use model favouring instead adopting
specific exceptions thought to be desirable in UK law.12
In refusing to adopt fair use, the government pointed to
the need for certainty in the law and to ensure that UK
treaty obligations could be met:
Identifying where the boundaries should lie is
critical in ensuring that our copyright system
remains fit for today’s world. A system of strong
rights, accompanied by limited exceptions, will
provide a framework that is valued by and
protects right holders and is both understood and
respected by users.
We also need to comply with the international
legal framework … [and] also need to ensure that
copyright law does not place unnecessary
administrative burdens on business and can be
understood and is respected by the general
public.13

iii. New Zealand

In its recent comprehensive copyright review, New
Zealand also specifically considered and rejected a fair
use regime. The government’s Internal Working Paper
identified some significant problems with fair use,
including:
• the fragility of New Zealand’s small
marketplace could be adversely impacted by
such a broad exception;
• the problem that fair use may not comply
with the three-step test;

11
U.K., Secretary of State, Reform of the Law Relating to Copyright,
Designs and Performers’ Protection by Dept. of Trade and Industry
(London: HMSO, July 1981) at 45-46.
12
Taking Forward Gowers, supra note 2.
13
Ibid., at 1, 6.
 • the need to preserve a balance between
copyright owners and users; and
• the uncertainty and unpredictability
associated with fair use.14
The New Zealand government stated that no
compelling reason had been presented to adopt any of
the fair dealing/fair use international models raised
(including fair use) and described its existing closed fair
dealing system as technologically neutral and able to
adapt to the digital environment with only minor
changes.15

B. EUROPEAN UNION
The European Union has implemented a closed
model for exceptions and limitations.16 The exceptions
and limitations mandated by various directives were the
result of painstaking consultation processes lasting from
1995 to 2001.17
In the lead up to the passage of the Information
Society Directive, the 1996 Follow Up Paper concluded
that the most desirable approach was to “set out closely
defined fair use exceptions/limitations to the exclusive
right destined to accommodate the interests of users or
the public at large.”18
Eight years after the passage of the Directive,
Europe is continuing along the same path. In the current
EU Green Paper process, the Commission has not

14
Internal Working Paper,supra note 2, at paras. 18, 246-497; Digital
Technology and the Copyright Act 1994: A Discussion Paper (July 2001)
(“A Discussion Paper”) at paras. 192-194; 260.
15
Ibid., at para. 264; N.Z., Digital Technology and the Copyright Act
1994: Position Paper (December 2002) at paras. 160-61. Also see the
New Zealand Government’s archive page for all studies on copyright
reform.
16
Bernt Hugenholtz, Mireille Van Eechoud, Stef Van Gompel, Guibault,
Lucie et al., “The Recasting of Copyright & Related Rights for the
Knowledge Economy” Final Report (November 2006) at 61. The
exceptions and limitations appear in four of the eight copyright-related
directives: the Computer Programs Directive, the Rental Right
Directive, the Database Directive and the Information Society
Directive.
17
EC, Communication on Copyright and Related Rights in the
Information Society (1996: IP/96/1042).
18
Ibid.
revisited the question of whether closed exceptions are
warranted. Rather, it is refining existing exceptions and
considering whether further specific exceptions should be
created.19
The Information Society Directive sets out twenty-
one specific situations that may give rise to an exception
or limitation in a member state.20 The targeted nature of
these provisions is seen as essential to compliance with
the Berne/TRIPs three-step test,21 which is also codified in
the Directive itself.22
C. THE UNITED STATES
The United States has a significant history of using
the fair use model. In that country, there is a significant,
and well-respected, group of individuals who are of the
opinion that fair use has become ungainly and costly, and
has led to significant uncertainty for both rights holders
and users. Its “flexibility” has proven the converse of the
certainty and clarity normally sought in a general law.
One academic stated “[t]he doctrine seems ill-
defined at best, and empty at worst.”23 Another wrote

19
EU Green Paper, supra note 2, at 4-20.
20
Directive 2001/29/EC of the European Parliament and of the Council
of 22 May 2001 on the harmonisation of certain aspects of copyright
and related rights in the information society, Art. 5 [the “Information
Society Directive“]. Only one of the exceptions is mandatory, with the
remaining twenty exceptions and limitations to be considered by each
member on a case-by-case basis.
21
Institute for Information Law, University of Amsterdam, “Final
Report: Study on the Implementation and Effect in Member States’
Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects
of Copyright and Related Rights in the Information Society”, February
2007 [“Implementation Study”] at 57, noting that the Czech Republic,
France, Greece, Hungary, Italy, Luxembourg, Malta, Poland, Portugal
and Slovakia have incorporated the test into substantive law and that
the test was referred to and applied by courts in Austria, Belgium,
Finland, and the Netherlands; also see Kristin Friberg, The Swedish
Implementation of the InfoSoc Directive (MA Thesis, Jönköping
University International Business School, 2006) [unpublished] at 23-24,
concluding that the specific language of the private use limitation in
Art. 5(2b) of the Directive was necessary to ensure compliance with
the three-step test, and Sam Ricketson, “WIPO Study on Limitations
and Exceptions of Copyright in the Digital Environment”, SCCR/9/7
(June 2003) [Ricketson, "WIPO"] at 70, concluding that Art. 5 of the
Directive is “at the other end of the spectrum” from the U.S. in terms
of three-step compliance.”
22
The Information Society Directive, ibid., Art. 5.5.
“fair use has become too many things to too many people
to be much specific value to anyone.”24
Some of the problems with the fair use model were
highlighted by Lawrence Lessig, one of the popular
advocates for U.S. copyright reform. In his book Free
Culture, he stated that fair use amounted to little more
than “the right to hire a lawyer”.25 He explained:
And as lawyers love to forget, our system for
defending rights such as fair use is astonishingly
bad—in practically every context, but especially
here. It costs too much, it delivers too slowly, and
what it delivers often has little connection to the
justice underlying the claim. The legal system
may be tolerable for the very rich. For everyone
else, it is an embarrassment to a tradition that
prides itself on the rule of law.
Judges and lawyers can tell themselves that fair
use provides adequate ‘breathing room’ between
regulation by the law and the access the law
should allow. But it is a measure of how out of
touch our legal system has become that anyone
actually believes this. The rules that publishers
impose upon writers, the rules that film
distributors impose upon filmmakers, the rules
that newspapers impose upon journalists— these
are the real laws governing creativity. And these
rules have little relationship to the ‘law’ with
which judges comfort themselves.26
Many other U.S. scholars have also concluded that there
are significant problems with the fair use model.27
23
Darren Hudson Hick, “Mystery and Misdirection: Some Problems of
Fair Use and Users’ Rights” (2009) 56 Journal of the Copyright Society
of the U.S.A. 485 at 500.
24
Michael J. Madison, “Rewriting Fair Use and the Future of Copyright
Reform” (2005-06) 39 Cardozo Arts & Ent. L.J. 391.
25
Lessig, supra note 8, at 187. Apart from the direct costs to litigants,
the high transaction costs incurred by rights holders in a fair use
system would be passed indirectly to consumers in the form of higher
prices.
26
Ibid. Apart from the direct costs to litigants, the high transaction
costs incurred by rights holders in a fair use system would be passed
indirectly to consumers in the form of higher prices.
27
See Rebecca Tushnet, “Copy this Essay: How Fair Use Doctrine
Harms Free Speech and How Copying Serves It” (2004) 114 Yale L.J.
535 at 554, concluding that flexible, fair use requires case-by-case
application and provides “no predictability for a publisher curious to
know what it can do outside the barest minimum of quotation of
literary works.” Also see Neil Netanel, Copyright’s Paradox (New York:
 While Canadian advocates of fair use describe the
United States as a bastion of flexibility, such a
characterization risks inaccuracy to the extent that it
treats exceptions and limitations as part of a single
unified program. Rather, as scholars have pointed out:
[B]efore a fair use defence is adopted as a model
for change it is important to consider the context
in which the fair use defence operates at present
in the United States. This in turn requires an
appreciation not only of practical arrangements
and the specific environments in which the fair
use defence operates, but also consideration of
certain aspects of US legal culture.
[…]
In order to understand how the fair use defence
operates in practice in the United States it is
important to appreciate that a complex web of
understandings, agreements and policy
statements support the legislative provisions.28
Criticisms of fair use were summarized in a study
by Professor Giuseppina D’Agostino of Osgoode Hall Law
School. This study, which was commissioned by the

Oxford University Press, 2008) at 16. This view is shared by the scholar
David Nimmer, who calls “fair use” a “fairy tale” whose complexities
have required four separate visits to the Supreme Court, and yet have
resulted in a system whose “upshot would be the same … had
Congress instituted a dartboard rather than the particular four fair use
factors embodied in the Copyright Act”: David Nimmer, “‘Fairest of
them All’ and Other Fairy Tales of Fair Use” (2003) 66 Law and
Contemporary Problems 263 at 280 [Nimmer]; Gideon Parchomovsky
et al “Fair Use Harbors” (2007) 93 Virginia Law Review 1483 at 1484-
1486: “Fair use is at once the most important and most ‘troublesome’
doctrine in copyright law…the case law is characterized by widely
divergent interpretations of fair use, divided courts, and frequent
reversals. The state of affairs has prompted a leading commentator to
conclude that the doctrine of fair use is impervious to generalization
and that attempts to drive its meaning from careful analysis of specific
cases are futile.”
28
Robert Burrell and Alison Coleman, Copyright Exceptions: The Digital
Impact (Cambridge: UK; New York: Cambridge University Press, 2005)
at 268 (“Burrell and Coleman”), including among these supports
guidelines and agreements that were reached only after protracted
negotiations, prominent cases, and out-of-court settlements, which
“might prove impossible to replicate” in another jurisdiction. Also see
Giuseppina D’Agostino, Healing Fair Dealing, CLPE Research Paper
28/2007, at 2 [D’Agostino, “Healing Fair Dealing”], noting the critical
importance in the U.S. of negotiated industry-specific guidelines in
affecting fair use review by the courts.
Department of Canadian Heritage, highlighted major
problems with fair use:
[S]ome remarks must be made on the burgeoning
body of scholarship, studies and reports
criticizing US fair use. Fair use is said to be “ill,
though hardly dead yet.” Many have called on
Congress to clarify fair use. There has been no
shortage of solutions proposed. But to date
Congress has resisted changing fair use. The
courts have also failed to simplify fair use by
attempting to establish bright-line presumptions
(1) that commercial uses are unfair, (2) favouring
plaintiff’s unpublished works, and (3) more
recently, that works must be transformative to
constitute fair use. Moreover, it is increasingly
expensive to mount litigation to clarify the scope
of use and some users may be risk-averse to
begin with. The American Intellectual Property
Law Association estimates the average cost to
defend a copyright case to be just under one
million US dollars.
Although fair use’s attention to context is
certainly salutary, “it is so case-specific that it
offers precious little to artists, educators,
journalists, Internet speakers, other[s]” who want
to use the copyrighted work. Google’s digitization
project of large library collections is a recent sign
that in the digital age, issues of fair use have
taken on urgency.29
The same study found that the fair use doctrine is
not the “panacea approach” some have made it out to be,
and noted that of the few other jurisdictions to adopt the
U.S. model, Singapore is suffering considerable growing
pains, as “its courts are reluctant to consider US fair use
cases causing much disorder”.30 The study concluded that
adopting U.S. law without further study would be
inadvisable, as:

29
Giuseppina D’Agostino, “Fair Dealing After CCH” report prepared for
the Department of Heritage, June 2007, at 33-34 [D’Agostino, “After
CCH”]; Also see Jennifer Urban and Laura Quilter, “Efficient Process or
‘Chilling Effects?’” (online: <http://static.chillingeffects.org/Urban-
Quilter-512-summary.pdf>) noting at 12-13 the “notorious” difficulty of
defining a line for fair use and examining the difficulty of making such
a claim in the notice-and-takedown context.
30
D’Agostino, “After CCH” supra note 40 at 40-41.
 This approach would cause more perplexity than
currently exists. One must be very careful when
importing legal devices from other jurisdictions.31

3. CANADA HAS ALREADY THOROUGHLY

STUDIED AND REJECTED A FAIR USE SYSTEM

In 1985, the Sub-Committee on the Revision of

Copyright specifically rejected replacing fair dealing with
an open-ended expanded fair dealing or fair use system.
It did so for two reasons. First, it concluded that Canada’s
fair dealing regime worked well and did not need such a
major overhaul:
This scheme of inquiry in connection with fair
dealing has worked well. There has been very
little litigation in Canada on this issue. Indeed,
there has not been a great deal of litigation in
any of the Commonwealth countries which have a
similar provision. This alone is a good reason not
to alter drastically the existing fair dealing
provision. Submissions to the Sub-Committee
attributed the success of the existing fair dealing
scheme to the sequential tests used in applying
the provision: infringement must first be
established and then the dealing must be fair and
for one of the enumerated purposes.
The Sub-Committee is of the view that this
scheme should be retained. It settles many
potential lawsuits at an early stage.1
Second, the Sub-Committee looked closely at the
U.S. system and concluded that it would not be advisable
to import this “substantially wider” concept to Canada:
The wider approach in the United States has
given rise to much litigation there, and has
caused the issue to be raised as a matter of
course in all copyright actions. It has created
rather than curtailed the uncertainty surrounding
the concept.2
In the 1986 Government Response to the Report of
the Sub-Committee, the government of Canada
specifically agreed that “the present fair dealing
31
Ibid.
1
Canada, Sub-Committee on the Revision of Copyright, A Charter of
Rights for Creators, (October 1985) at 64.
2
Ibid., at 63-66.
provisions should not be replaced by the substantially
wider ‘fair use’ concept”.3

4. IMPORTING FAIR USE INTO CANADA WOULD RISK ADVERSE

CONSEQUENCES

A. FAIR USE WOULD UNDERMINE LONGSTANDING MADE-IN

CANADA COPYRIGHT MODELS

In Canada, exceptions and limitations in the Act do

not exist in a vacuum. The Act contains a set of
interconnected provisions which operate together to
achieve the policy objectives behind copyright. A shift to
fair use could substantially undermine important
provisions in the Act.
For example, collective administration of copyright
has a long history in Canada and is essential for
compensating copyright holders for their creative efforts
and investments. As Normand Tamaro observes:
Collective administration can serve to offset
the difficulty of protecting copyright in a
world of ever-expanding means of
communication. The copyright owner loses a
certain amount of control over the
communication of his work, but gains profits
through the increased collecting power of the
associations. More often than not, collective
administration is the only effective way to
exploit one’s copyright.1
At present, there are more than three-dozen
collective societies operating in Canada. These entities
benefit consumers by providing an easy way for them to
obtain access to works or other subject matter. Collective
licensing also produces royalties for Canadian composers,
authors, and other creators.2 However, royalties can only
3
Government Response to the Report of the Sub-Committee on the
Revision of Copyright, February 1986, at 12-13.
1
Normand Tamaro, 2008 Annotated Copyright Act (Toronto, ON:
Thomson Canada Limited, 2007) at 768.
2
See, for example, Minister of Public Works and Government Services,
“The Canadian Music Industry: 2006 Economic Profile”, online:
Canadian Heritage <https://www.pch.gc.ca/pgm/fmusc-
cmusf/pubs/prfl/index-eng.cfm> Part III.
be imposed on activities for which a licence from a
copyright holder is required. If an open-ended fair use
system were established, it would undoubtedly be relied
upon by users to eliminate or reduce the scope of
royalties that must be paid in private negotiations and in
proceedings before the Copyright Board.3 It would make
collective licensing more difficult and expensive as users
would continually be able to raise new potential reasons
not to pay based on the vague purpose of fair use.
Further, licensing would become more difficult as users
and right holders would be uncertain about what is
covered by a collective licence.
The Act also contains specific exemptions that
reflect a delicate balance between the stakeholder
interests that could be adversely affected by fair use. For
example, the private copying regime provides a levy on
audio recording media to compensate rights holders in
musical works and sound recordings for the copying of
their music onto such media.4 A levy is only exigible on
uses of music that would otherwise constitute an
infringement and require a licence. A new fair use
provision could arguably exempt much of the copying for
which royalties are currently paid to Canadian rights
holders.5
There have been many requests to expand the levy
to include new media, such as DARs, and for new types of
3
In the Reprographic Reproductions (Educational Institutions 2005-09)
(26 June, 2009), Copyright Board of Canada Decision, online:
<http://www.cb-cda.gc.ca/decisions/2009/Access-Copyright-2005-
2009-Schools.pdf> case, the Copyright Board refused to extend fair
dealing for research to educational uses. This would certainly be
challenged if fair dealing were expanded.
4
The courts have held that the levy was created to support creators
and cultural industries by striking a balance between the rights of
creators and those of users and to overcome difficulty in enforcing
rights of reproduction connected to private use: Canadian Private
Copying Collective v. Canadian Storage Media Alliance (2004), 36
C.P.R. (4th) 289 (F.C.A.) at para. 51; Canadian Private Copying
Collective v. Cano Tech Inc., [2006] 3 F.C.R. 581 at paras. 4-6
(F.C.T.D.).
5
In promulgating the levy system in the 1997 copyright reforms, the
government recognized that one reason for instituting a levy was the
interrelationship between private copying and fair dealing, thus
meriting a levy to substitute for uncertain and wasteful litigation.
<http://www.parl.gc.ca/35/Archives/committees352/heri/evidence/16_9
6-06-18/heri16_blk101.html> before Senate Committee on Canadian
Heritage on Bill C-32, Tuesday, June 18, 1996, at 1120-35.
works.6 However, if fair use was introduced into the Act, it
could significantly reduce the need for an expanded
private copying exception and undermine any prospect of
expanding the private copying regime.
The Copyright Act contains many detailed
exceptions such as those for educational institutions,
libraries, archives and individuals with perceptual
disabilities. Many new exceptions were also proposed in
Bill C-607 and Bill C-61.8 A new fair use provision could be
interpreted by the courts as an independent basis for
determining acceptable uses in all of these contexts.9 This
could result in costly litigation to determine the scope of
permissible uses in these important sectors. In that
situation these vital policy considerations would be
determined by the courts and not by Parliament.
Another potentially adverse effect of making a
wholesale change to the fair use system would be the
uncertain effect on the vast number of contracts entered
into between creators, rights holders and users respecting
copyright. As the Heritage Study noted, it is:
Thus important to assess how the role of contract
is embedded in the Canadian Copyright Act and
how it is deployed in practice to promote and
temper the desired results—presumably the
objectives of balance where the interests of
creators, users, rights holders and the general
public are considered.10

6
For example, at the current Halifax roundtable, the Canadian Private
Copying Collective, American Federation of Musicians, and ACTRA
sought to expand the levy to other media and works. “Halifax – Round
Table and Public Hearings on Copyright” (10 August, 2009)
<http://www.ic.gc.ca/eic/site/008.nsf/eng/00893.html. Similarly, at the
current Vancouver roundtable, the Writers Guild requested that the
private copying levy be expanded to other media and other copyright
subject matter, and the Canadian Film and Television Production
Association requested that an ISP levy be imposed to the extent ISPs
participate as broadcasters. “Vancouver – Round Table and Public
Hearings on Copyright” (20 July, 2009)
<http://www.ic.gc.ca/eic/site/008.nsf/eng/00060.html>.
7
Bill C-60, An Act to Amend the Copyright Act, 1st Sess., 38th Parl.,
2005.
8
Bill C-61, An Act to Amend the Copyright Act, 2nd Sess., 39th Parl.,
2007-2008.
9
CCH, supra note 3 at para. 49. where the Supreme Court held that
the fair dealing exception for research was not constrained by the
specific exceptions in the Act covering libraries.
 Advocates of enacting a fair use model for Canada
assume that this model would privilege purely personal
uses, and that this would be in the public interest.
However, privileging purely personal uses could
undermine the importance of the values currently
protected by fair dealing, values which serve a much
greater public purpose than personal uses of copyrights.
There is a distinction between uses that serve a public
purpose and purely personal uses. Certain exemptions
under the current fair dealing law further the public
interest in the dissemination of works, through criticism,
review, research and private study. To the extent that
specific exemptions are needed to deal with access
problems resulting from digitization or the Internet, it
would be preferable to create specific exceptions to
address them rather than distorting fair dealing doctrines
to accommodate purely personal uses of copyright
materials.11

B. FAIR USE CANNOT BE TRANSPLANTED INTO CANADA WITHOUT

CREATING SIGNIFICANT UNCERTAINTY
Those who argue in favour of adopting fair use
seem to assume that this system can effectively and
easily be transplanted into Canadian law. What they fail to
recognize or address is that the doctrine was codified into
American law after more than 150 years of judicial
interpretation that gave the doctrine meaning and
boundaries.12 Adopting fair use into a legal system that
lacks this backdrop would result in confusion, and
unpredictable applications, which would inhibit both users
and creators from understanding what is permissible, and

10
D’Agostino, “After CCH”, supra note 40 at 7. Fair use is regarded as
an affirmative defense under U.S. law which the putative infringer has
the burden of carrying. Campbell v. Acuff-Rose Music Inc., 510 U.S. 569
(1994). In CCH the Supreme Court called the fair dealing defence a
“user right”.
11
See Melissa de Zwart, “Fair use? Fair dealing?”, Faculty of Law,
Monash University, Research Paper No. 2006/09, December 7, 2007 at
32.
12
The common-law doctrine of fair use in the United States is
considered to originate in
http://www.faculty.piercelaw.edu/redfield/library/Pdf/case-
folsom.marsh.pdf 9 F.Cas. 342, an 1841 decision by Justice Joseph
Story. The doctrine as developed by the courts was codified in s. 107 of
the 1976 revisions to the U.S. Copyright Code.
what is not.13 A broad exception with unclear boundaries
could also hamper effective enforcement against
infringement, because violators would always attempt to
argue that their acts were “fair”.
Moreover, Canada’s copyright law is considerably
different from U.S copyright law.14 It is also based on a
different constitutional footing,15 and operates within a
much different cultural setting. Canada has a hybrid, dual-
language market that combines a common law copyright
tradition inherited from England with a droit d’auteur civil
law tradition inherited from France.16 Given all these
factors, it is very uncertain that Canadian courts would
simply adopt all of the principles derived from the U.S.
cases or that specific cases would be decided in the same

13
Supra note 56, at 33. In commenting on a proposal to enact a fair
use regime in Australia, Zwart states: “The adoption or application of
fair use laws without full consideration of what they bring to enhance
existing Australian law is short-sighted. Copyright law is complicated
enough; it does not need to be complicated further by grafting on laws
from another copyright context. It is time to carefully consider
amendments we actually need to our fair dealing law, especially in
areas such as parody, to ensure that it continues to protect the
interests and values of copyright owners and users in the 21st
Century.”
14
See CCH, supra note 3 at para. 22, where the Supreme Court stated
that “U.S. copyright cases may not be easily transferable to Canada
given the key differences in the copyright concepts in Canadian and
American copyright legislation”.
15
D’Agostino, supra note 40, noting at 51 that even if Canada could
selectively incorporate U.S. precedents into a Canadian setting, this
approach could not import constitutional values. Similarly, Burrell and
Coleman suggest at 269 that the fair use defence in the United States
is closely bound up with constitutional guarantees of free speech,
privacy, freedom from regulation, and free competition and that “it is
beholden on us to think carefully about how a fair use defence would
be likely to operate in a legal environment in which the principles that
underpin and reinforce the fair use defence in the United States do not
enjoy the same prominence”.
16
See Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2
S.C.R. 336 at paras. 12-16, 63-64 (majority), 116 (dissent), discussing
the dual antecedents of Canadian copyright law. Also see Information
Highway Advisory Council, Copyright and the Information Highway
(1994), at 26, where the Parliamentary Sub-Committee rejected the
importation of the U.S. fair use system in part because “The Canadian
Act is based on very different principles [than the U.S. Act]: the
recognition of the property of authors in their creation and the
recognition of works as an extension of the personality of their
authors.”
way as they were in the U.S. In fact, there is good reason
to think they would be decided differently.17
Even if Canada was able to import all facets of the
U.S. system, without modification, scholars such as
Nimmer suggest that no clear direction would be
ascertainable from the U.S. example, with the statutory
fair use factors providing no correlation whatsoever with
the prospects of success in any given case.18
The Heritage Study enumerates the dangers of
simply importing the fair use model to Canada without
contemplating the unanticipated effects that might ensue:
Some commentators have championed that
Canada adopt US fair use. This would entail
“cherry-picking” from the US cadre of copyright
laws and taking from it its fair use provision.
There are problems with this approach. First, as
noted from eminent US studies, fair use is “ill”
and not the panacea approach that many,
perhaps in Canada, proclaim. Because fair use is
ill, it has by necessity engendered many fix-it
approaches, some by the courts themselves
attempting to impose bright-lines (eg
presumptions on commercial uses) and by
industry players attempting to institute best
17
Canada and the United States have already diverged on the fairness
factors. Compare, for example, CCH with the influential 2nd Circuit case
American Geophysical Union v. Texaco Inc., 60 F.3d 913 (1994). In
American Geophysical, the majority considered the availability of a
licence to be relevant in concluding that the photocopying by Texaco
of eight articles was not fair. In CCH, the Supreme Court came to the
exact opposite conclusion at para. 70. Canadian courts also diverged in
the weight assigned to the various fairness factors. Consider for
example, the weight to be given to the effect of the dealing on the
market for the work. In CCH, the Supreme Court said at para. 59 that
"Although the effect of the dealing on the market of the copyright
owner is an important factor, it is neither the only factor nor the most
important factor that a court must consider in deciding if the dealing is
fair." By contrast, in the case of Harper & Row, Publishers, Inc. v.
Nation Enterprises, 471 U.S. 539 at 566 (1985), the U.S. Supreme
Court called this "the single most important element of fair use." While
other courts have suggested that no one factor should enjoy primacy,
they have still identified this factor as "important" in comparison to
"the nature of the work" and "the amount and substantiality of the
portion used": American Geophysical at para. 83.
18
Nimmer, supra note 38 at 267-81, assessing the analysis of sixty fair
use cases from 1994 to 2002, finding no statistical correlations, and
concluding that the s. 107 statutory test succeeded only in “injecting
… a high degree of subjectivity and imprecision into each factor and
their cumulative application.”
 practices. Second, cherry-picking a law, likely
also means taking from its jurisprudence (and
neglecting other constitutive factors, such as a
Constitution). Would Canadian courts apply US
fair use cases? Would this application ignore the
fact that property is not constitutionally
entrenched in Canada?19

C. THE PROPOSED REFORMS RISK VIOLATING CANADA’S

INTERNATIONAL TREATY OBLIGATIONS
Independent from the policy considerations raised
in this paper, there is a risk that adopting a fair use
system would violate Canada’s obligation to enact its
copyright legislation in harmony with its international
treaty obligations.20 Under the three-step test imposed by
the Berne Convention and the TRIPS Agreement, Canada
agreed to confine limitations or exceptions to (i) certain
special cases, (ii) that do not conflict with a normal
exploitation of rights, or (iii) unreasonably prejudice the
legitimate interests of authors or right holders.21 Each
condition of the three-step test must be given a distinct
meaning and treated as a separate and independent
requirement.22
19
D’Agostino, “After CCH” supra note 40, at 40-41. Her view is echoed
by Neil Netanel, who writes, “a legal rule or doctrine often operates
quite differently, or carries very different symbolic content, when
transplanted from the source to the host jurisdiction. Even if a rule is
transplanted word-for-word, it may effectively be modified in
substance or simply rendered irrelevant in the host country”:
“Asserting Copyright’s Democratic Principles in the Global Arena”
(1998) 51 Vanderbilt L. R. 217 at 274.
20
Sam Ricketson and Jane Ginsburg, International Copyright and
Neighbouring Rights: The Berne Convention and Beyond, Vol. I, 2d ed.
(Oxford; New York: Oxford University Press, 2006) at para. 10.31-
10.34; Mihály Ficsor, The Law of Copyright and the Internet: The 1996
WIPO Treaties, Their Interpretation and Implementation (Oxford; New
York: Oxford University Press, 2002) at §3.16 [Ficsor]; Opinion of the
Council of Copyright Experts, No. SzJSzT 17/06 of May 11, 2006
(Hungary) [“Hungarian Opinion”], paras. 8-10; Remuneration of Private
Copying in Australia [“Aust. Report”] at 570-71, 582; Barry Sookman,
“The SAC Proposal for the Monetization of the File Sharing of Music in
Canada” (2008) 1 Osgoode Hall Rev. L. Pol’y 101 at 109-129
[Sookman, “SAC Proposal”].
21
Article 9(2) Berne Convention; Part II, Article 13 TRIPS; Ricketson,
ibid., at paras. 13.11-13.25. Under NAFTA, Canada agreed to extend
application of the three-step test to sound recordings.
22
Report of the Panel on United States – Section 110(5) of the US
Copyright Act, (2000), WTO Doc. WT/DS160/ [“WTO Decision”], at para.
 The first step of the test requires that (a) the scope
of the exception must be “known and particularized” in
order to guarantee a sufficient degree of legal certainty;23
and (b) the exception or limitation must involve “special”
circumstances.24 A WTO panel considering the legitimacy
of a U.S. copyright provision concluded that this step
requires any exception or limitation to have “a narrow
scope as well as an exceptional or distinctive objective”.25
The second step of the test requires that the
exception or limitation not conflict with the normal
exploitation of the work, including “those forms of
exploitation which, with a certain degree of likelihood and
plausibility, could acquire considerable economic or
practical importance.”26
The final step of the test requires that the
exception or limitation does not unreasonably prejudice
the legitimate interests of the author (Berne) or right
holder (TRIPS). The term “legitimate interests” is
considered to encompass both economic and non-
economic interests; the term “unreasonably prejudice” is
thought to refer to disproportionate harm, damage or
injury to such interests.27
Many authorities have reviewed the fair use system
for compliance with the three-step test and have
expressed the opinion that it is non-compliant. 28 Writing
6.97; Report of the Panel on Canada - Patent Protection of
Pharmaceutical Products, (2000),WTO Doc. WT/DS114/R [“WTO Patent
Decision”], at para 7, 7.21; Ficsor, supra note 65, at 91-92; WTO
Decision, para. 6.74; Martin Senftleben, Copyright, Limitations and the
Three-Step Test (The Hague, New York: Kluwer Law International,
2004) at para. 4.3; Ricketson, supra note 66, at paras. 13.11-13.25.
23
WTO Decision, ibid., at para. 6.108.
24
Ibid., at para. 6.109.
25
Ibid., at para. 6.112.
26
Ibid., at para. 6.180; Ricketson, “WIPO” supra note 32 at 24.
27
Ricketson, "WIPO", ibid., at 27.
28
See Herman C. Jehoram, “Restrictions on Copyright and their Abuse”
(2005) 27 E.I.P.R. 359, stating at 360 that “[t]he open American ‘fair
use’ system in fact violates the Berne Convention with its specific
restrictions which serve to guarantee the rights of authors and the
interests of users by providing them with legal certainty”, and Burrell
and Coleman, supra note 40, at 270, citing numerous other studies
concluding that the fair use regime is not TRIPS-compliant. Some
academics have taken a different view and express the opinion that
the U.S. fair use system can be interpreted in such a way to be in
compliance with the three-step test. See, for example Senftleben,
supra note 68, at 162, arguing that the U.S. system is a “special case”,
for the WIPO Standing Committee on Copyright and
Related Rights in 2003, the well-respected Australian
copyright scholar Sam Ricketson concluded that the
“open-ended, formulaic provisions” contained in s. 107 of
the U.S. Copyright Act were vulnerable to the three-step
test. While it “was quite possible that any specific judicial
application of Section 107 will comply with the three-step
test as a matter of fact”, he concluded that:
The real problem, however, is with a provision
that is framed in such a general and open-ended
way. At the very least, it is suggested that the
statutory formulation here raises issues with
respect to unspecified purposes (the first step)
and with respect to the legitimate interests of the
author (third step).29

and Gerald Dworkin, “Copyright, the Public Interest and Freedom of

Speech” in Jonathan Griffiths and Uma Suthersanen, eds., Copyright
and Free Speech: Comparative and International Analyses (Oxford;
New York: Oxford University Press, 2005) at 162, suggesting that the
United States also seems to believe that fair use and the three-step
test are compatible, but concluding that the issue will go to a WTO
panel. The question of whether the United States has ever tested its
fair use regime to Berne also remains a matter of debate. When the
United States acceded to Berne in 1988, both the House and the
Senate took the position that Berne was not self-executing, meaning
that the application of the treaty to the United States was limited to
that in the implementing legislation: U.S., “House Statement on the
Berne Convention Implementation Act of 1988”, Congressional Record
(Daily Ed.), October 12, 1988 at PAGE H10095. Respected scholars
have concluded that since none of the acts of legislation implementing
Berne or TRIPS alters fair use, the United States may have relied on the
international law principle to allow it to “reserve matters relating to fair
use to the sovereign control of the United States.” In the American
context, this option may have been the only feasible outcome to avoid
the chaos that would have resulted from a wholesale conversion of the
fair use standard to a foreign model: Dan L. Burk, Julie E. Cohen, “Fair
Use Infrastructures for Rights Management Systems“ (2001) 15
Harvard Journal of Law & Technology 41 at 77; Burrell and Coleman,
supra note 40, at 271, reviewing articles raising doubts about U.S.
compliance with the three-step test but noting the “realpolitik view
that given US dominance in international copyright matters it is highly
unlikely that the Dispute Settlement Body of the WTO would ever
declare the US fair use provision to be incompatible with TRIPS”.
29
Ricketson, "WIPO", supra note 32, at 67-69. Although Ricketson
focuses on the first and third steps, there remains an argument that s.
107 of the U.S. Act violates the second step as well. If each step of the
test must be treated as a separate and independent requirement,
language directing the courts to consider, among other factors, “the
effect of the use upon the potential market for, or value of, the
copyrighted work,” would seem to fall short of the international
standard, particularly since a review of the case law shows that court
 As noted above, several governments including
Australia, New Zealand and the UK have cited
international treaty obligations as one of the reasons for
not adopting a fair use system.30
Professor Daniel Gervais has suggested that the
CCH decision brings Canada “dangerously close to a
violation of the TRIPs Agreement and its ‘three-step test’
against which all copyright exceptions can now be
measured”.31 To rewrite our Act to expand it even further
to include fair use could place Canada at a greater risk of
violating these international obligations.

D. CANADA HAS AND SHOULD CONTINUE ADDING

EXCEPTIONS TO ADDRESS SPECIFIC SPECIAL CIRCUMSTANCES
IN ACCORDANCE WITH THE THREE-STEP TEST

In past consultation processes, Canada has taken

the path of adopting exceptions and other limitations to
the exclusive rights of copyright owners only where:
• there is a demonstrated public policy need for
access to copyright protected materials and the
market has not met or is unable to meet that
demand; or
• it would defeat an important public policy objective
to require the user to obtain authorization prior to
use.32

findings on this factor correlated with the eventual result in only fifty
percent of cases. Nimmer, supra note 39, at 268, 280. Interestingly,
even in the few cases in which all four factors appeared to line up in
the same direction, either fair or unfair, they still had no predictive
value: 282-84.
30
In its Explanatory Memorandum, supra note 2 at 7-8, Australia stated
that “it is necessary that any amendments to the Act comply with
international copyright treaties”, including the three-step test. In 2008,
the UK government declined a recommendation that it develop a fair
use model, stating as a rationale that “We … need to comply with the
international legal framework”: Taking Forward the Gowers Review,
supra note 2, at 1, 6. Also see the New Zealand documents Internal
Working Paper supra note 2 at 61 and A Discussion Paper supra note
25 at paras. 192-194, each discussing international obligations.
31
Daniel Gervais, “The Purpose of Copyright Law in Canada” (2005)
2:2 UOLTJ 315 at 322; D’Agostino, “After CCH” supra note 40 noting at
7 that “should the courts apply CCH expansively, this may trigger
international scrutiny of the legislation”.
 While not all exceptions proposed in previous
copyright reforms have been perfect, the alternative of
leaving these policy decisions to individual litigants and
the courts would seem a far less effective, less
democratic and less principled way to approach copyright
reform. A fair use system would not permit policy
decisions to be made in advance with appropriate
consultation. It is designed to create guidelines for
behaviour only after individual issues are tried in the
courts. Given the length of time it would take to achieve a
body of law that is specific enough to guide the decisions
of users and right holders, it is questionable whether it
could offer any objective guidance. Further, the U.S.
experience has shown that even decided cases are not
necessarily predictive of future outcomes, as facts specific
to new cases have often dictated inconsistent results.33

E. EFFECTS ON THE CANADIAN CULTURAL MARKETPLACE

In reform processes elsewhere, governments have
recognized the critical importance of designing a
copyright system that takes into account the realities of
the size and geographical or cultural isolation of their
marketplace. For countries like Canada, which have a
relatively small population, overbroad exceptions and
limitations can have adverse effects on the ability to earn
adequate remuneration from creative endeavours.34 This
general concern is even further magnified for specific

32
Canadian studies that discuss these criteria include Economic
Council of Canada, Report on Intellectual and Industrial Property (1971)
at 133; A.A. Keyes, C. Brunet, Copyright in Canada: Proposals for a
Revision of the Law (Consumer and Corporate Affairs Canada, 1977) at
12-16, 144-46; Supra note 43, at 63-64.
33
Nimmer, supra note 38.
34
Internal Working Paper supra note 2, at paras. 18, 248-49. This point
was also made by the European Publishers Council in the 2008 EU
Green Paper process, supra note 30, with the EPC warning that
“overbroad exceptions would lead to ever weaker offerings of versatile
‘good quality’ content.
cultural marketplaces such as the Province of Quebec,35
First Nations and Métis communities.

5. CONCLUSION

In the government’s call for submissions in the

current copyright consultations, it stressed four major
themes by which any future law would be measured. First,
based on Canadian values and interests, copyright
changes should be made in order to withstand the test of
time. Second, our copyright framework needs to be
updated to foster and take advantage of the
multiplication of digital platforms, which has opened new
markets, enabled new business models, and created new
opportunities. Third, the new framework must strengthen
Canada’s global competitive position and allow us to
attract investments and high-paying jobs to Canada. Last,
any changes must best position Canada as a leader in the
global, digital economy.1 The government has also
stressed the need for amendments to copyright to be
based on international standards and norms and clear,
predictable and fair rules to support creativity and
innovation. 2
Adopting fair use or an expanded fair dealing model
would be a transposition of a foreign doctrine into our
Canadian legal system, despite the fact that our legal
system lacks the institutional arrangements necessary for
this doctrine. It could, in fact, undermine the Canadian
values and interests already reflected in the Act’s many
35
As Christopher M. Jones notes in “Quebec Song: Strategies in the
Cultural Marketplace” (2001) 31 Quebec Studies 50, “The lack of
penetration in the French market is due to a variety of factors. The
simplest to identify is the high cost of “breaking” an artist on foreign
soil (i.e. attaining a market presence which becomes financially self-
sustaining in that territory). These costs include transportation,
technical tour support and promotional expense if touring artists are to
have any impact, as well as promotion of recordings for radio play, and
in-store sales promotion. … The limited size of the Quebec market does
not allow for any but the brightest stars to accumulate the necessary
war chests on their own.”
1
“Consultation Questions”, Online: Copyright Consultations <
http://copyright.econsultation.ca>.
2
Canada, “Reforming the Copyright Act – Backgrounder” Copyright
Reform Process 2008 (June 2008); Preamble to Bill C-61 “to adopt
coordinated approaches to copyright protection based on
internationally recognized norms”.
exceptions and specific statutory regimes. There is also
no reason to think that adopting a fair use system would
enable the difficult task of recalibrating copyright law to
adapt to ever changing technologies in order to withstand
the test of time.3
Our copyright framework needs to be updated to
take advantage of new markets and new opportunities in
a way that strengthens Canada’s global competitive
position, that allows Canada to attract investments, and
that positions Canada as a leader in the world-wide digital
economy. However, “fair use” would not accomplish these
objectives.
Fair use has been rejected by almost all our trading
partners. The U.S. is the sole exception to this, where the
doctrine was given a special status and meaning upon its
adoption. Our trading partners rejected the doctrine for
good reasons, and these reasons went well beyond the
legitimate concern that fair use is not compliant with the
three-step-test. Its enactment in Canada would result in
unclear and unpredictable protection for creative products
that would discourage investment. All stakeholders would
be compelled to spend considerable money to clarify what
is legal and what is not. Fair use would undermine present
and future revenue streams including revenues
associated with collective licensing and private copying
levies;all at a time when our creative industries need help
the most.
If new exceptions and limitations are warranted,
Canada should take the road chosen overwhelmingly
throughout the world. It should make a careful, focussed
study of the needs of Canadians for access to works that
the market has not met or is unable to meet and decide
on the best policy vehicles for meeting those needs.
Where required, new exceptions should be based on the
three-step test mandated by the treaties and conventions
Canada has agreed to honour.
For all of the above reasons, Canada should not
adopt a fair use model.

3
Supra note 57, at 33 arguing that fair use does not accommodate new
technology any better than fair dealing in terms of balancing the
rights, of owners and users.
 Appendix A – Supporting Organizations

Access Copyright, The Canadian Copyright Licensing Agency -

www.accesscopyright.ca
l’Association québécoise de l'industrie du disque, du spectacle
et de la vidéo (ADISQ) - www.adisq.com
American Federation of Musicians (AFM) - www.afm.org
ARTISTI (Société de gestion de l’Union des Artistes) -
www.uniondesartistes.com/index_artisti.aspx
Association des journalistes indépendants du Québec -
www.ajiq.qc.ca
Association des professionnels des arts de la scène du Québec
(APASQ) – www.apasq.org
Association of Canadian Publishers (ACP) - www.publishers.ca
Association of Canadian University Presses (ACUP) -
www.acup.ca
Book Publishers Association of Alberta (BPAA) -
www.bookpublishers.ab.ca
Canadian Actors' Equity Association (CAEA) - www.caea.com
Canadian Artists’ Representation (CARFAC) - www.carfac.ca
Canadian Artists Representation Copyright
Collective (CARCC) – www.carcc.ca
Canadian Association of Photographers and Illustrators in
Communications (CAPIC) - www.capic.org
Canadian Authors Association (CAA) - www.canauthors.org
Canadian Copyright Institute –
www.canadiancopyrightinstitute.ca
Canadian Educational Resources Council (CERC) - www.cerc-
ca.org
Canadian Freelance Union (CFU) - www.cfunion.ca
Canadian Music Centre (CMC) - www.musiccentre.ca
Canadian Music Publishers Association (CMPA) -
www.musicpublishercanada.ca
Canadian Photographers Coalition
Canadian Publishers’ Council (CPC) - www.pubcouncil.ca
Canadian Private Copying Collective (CPCC) - www.cpcc.ca
Canadian Society of Children's Authors, Illustrators and
Performers (CANSCAIP) - www.canscaip.org
Crime Writers of Canada (CWC) - www.crimewriterscanada.com
Directors Guild of Canada (DGC) - www.dgc.ca
Federation of BC Writers – www.bcwriters.com
Guild of Canadian Film Composers (GCFC) - www.gcfc.ca
L’Union des artistes - www.uniondesartistes.com
L’Union des écrivaines et écrivains québécois (UNEQ) -
www.uneq.qc.ca
La Societe Professionelle des auteurs et des
compositeurs du Quebec (CPACQ)
Le Centre de musique canadienne au Québec -
www.cmcquebec.ca
Magazines Canada - www.cmpa.ca
Neighbouring Rights Collective of Canada (NRCC) - www.nrcc.ca
Organization of Book Publishers of Ontario (OBPO) -
www.ontariobooks.ca
Playwrights’ Guild of Canada - www.playwrightsguild.ca
Professional Photographers of Canada - www.ppoc.ca
Professional Writers Association of Canada (PWAC) -
www.pwac.ca
Regroupement des artistes en arts visuels du Québec (RAAV) -
www.raav.org
Saskatchewan Publishers Group –
http://www.saskpublishers.sk.ca
Saskatchewan Writers Guild (SWG) - www.skwriter.com
Society of Composers, Authors and Music Publishers of Canada
(SOCAN) - www.socan.ca
Société des Auteurs de Radio, Télévision et Cinéma (SARTEC) -
www.sartec.qc.ca
Société de développement des périodiques culturels québécois
(SODEP) - www.sodep.qc.ca
Société québécoise de gestion collective des droits de
reproduction (Copibec) www.copibec.qc.ca
Society for Reproduction Rights of Authors, Composers and
Publishers in Canada (SODRAC) - www.sodrac.ca
Société de gestion collective des droits des producteurs de
phonogrammes et de vidéogrammes du Québec (SOPROQ) -
www.soproq.org
Songwriters Association of Canada (SAC) - www.songwriters.ca
The Creators’ Copyright Coalition – www.creatorscopyright.ca
The Writers’ Union of Canada (TWUC) - www.writersunion.ca
Writers' Federation of Nova Scotia - www.writers.ns.ca
Writers Guild of Canada - www.writersguildofcanada.com