Fair Dealing - Getting Copy Right

By Abraham Drassinower

Prof. Abraham DrassinowerThe recent landmark Supreme Court of Canada decision, CCH Canadian Ltd. v. Law Society of Upper Canada integrates the public domain squarely into the heart of copyright jurisprudence. In the Court's eyes, copyright law is as much a law of user as it is of author rights. Thus the defence of fair dealing, which specifies permissible uses of copyrighted works in the absence of the copyright owner's consent, is to be understood and deployed not negatively, as a mere exception, but rather positively, as a user right unequivocally integral to copyright law.

The Court's affirmation of the public domain takes place in and through the familiar vision of copyright law as a balance between dual objectives: promoting the public interest, on the one hand, and obtaining a just reward for the creator, on the other. Yet the bare assertion that copyright law is a dual objective system is not in and of itself sufficient to accomplish the task of integration. In the absence of an elucidation of the unifying principle holding author and public together, it is by no means clear that copyright is a "system" at all. That is, the question is how copyright is to be understood as indeed one thing with dual objectives, rather than two things that, so to speak, happen to have been thrown together in the same place for no apparent reason. The elucidation would focus neither on the author nor on the public but on the conditions for the possibility of the "balance" linking them as aspects of a single system. Authorial and public domains would appear thereby as moments of a single yet differentiated whole.

To be sure, it is possible to suggest that the word "integral" in CCH means nothing more than that the fair dealing provisions, contrary to much of previous Canadian jurisprudence, are to be interpreted liberally and generously. Along these lines, what CCH requires is not something as grand and perplexing as a reduction of author and public to a single principle, but rather a pragmatic affirmation of the public dimension of copyright law in the context of a history of neglect. Yet the point is precisely that, in the absence of the principle that integrates them, author rights and user rights would remain exceptions to each other, not aspects of an integrative and integrated vision.

The oddities of the resulting situation could be described as follows. On the one hand, because it would appeal to considerations external to authorship itself, the defence of fair dealing - and therefore user rights - would remain an exception to the normal operations of copyright law. On the other hand, because fair dealing would at the very same time be posited not as a mere exception but as an irreducible internal dimension of copyright law, the status of user rights as mere exceptions would be intolerable. Thus, in order to affirm and acknowledge the constitutive role of the defence, we would be compelled to assert that author rights should themselves be grasped as an exception to the normal operations of user rights. The inevitable upshot would be that the Supreme Court's achievement in CCH would be reduced to the level of staging a raging battle of exceptions in search of an absent rule. It is therefore difficult to avoid the conclusion that the Court's aspiration turns on the possibility of grasping user rights as an incidence of authorship itself.

The defence of fair dealing permits the defendant to establish that, in spite of the appearance of infringement, the defendant's work is after all his own, not truly a copy of the plaintiff 's. Fair dealing teaches that substantial reproduction is not per se wrongful. The very existence of the defence is ample proof of that proposition. Fair dealing stands for the proposition that responding to another's work in one's own does not mean that one's work is any less one's own. The defendant who makes out the fair dealing defence is in this sense an author in her own right. Fair dealing is a user right rather than a mere exception because it arises from and affirms the very same principle that gives rise to the plaintiff's entitlement. Exceptional would indeed be the expectation that the plaintiff assert her own authorship in a manner inconsistent with the defendant's.

My point here is not that the Supreme Court of Canada in CCH has expressly adopted the foregoing construal of its concept of user rights. Rather, my point is that, if it is to be more than yet another episode in a raging battle of exceptions, the Court's aspiration to integrate user rights squarely into Canadian copyright law, and thereby to provide a positive account of the public domain, both posits and presupposes a construal of the mutually constitutive and limiting relation between author and public.

This article was first published in the Spring 2005 issue of Nexus.