Near the end of 2012, a law called Bill C-11 made some significant changes to Canada’s Copyright Act, some of which influence the way fanworks are treated under Canadian law. With that in mind, we’re bringing you a series of Q&A posts written by Graham Reynolds, an Assistant Professor at the Schulich School of Law at Dalhousie University in Halifax, Nova Scotia, Canada. Graham teaches and researches in the areas of copyright law, intellectual property law, property law, and the intersection of intellectual property and human rights, so he’s the perfect person to explain how the changes are likely to influence the law of fanworks in Canada.
We posed a series of questions to Graham, and will be posting his answers in this space over the next couple of weeks. These answers aren’t legal advice, and if you need specific legal advice Graham (and we) advise you to consult with a lawyer and/or send a query to the OTW Legal Committee.
Today, Graham answers two questions: first about the general contours of the law, and second about the law of “fair dealing” (which is a like the U.S. concept of “fair use,” but as explained below, is somewhat different) In the latter, Graham walks through the requirements of what it takes for a fanwork to be considered “fair dealing” under the law.
— Betsy Rosenblatt, Legal Committee
1. What is Bill C-11 and, generally speaking, what did it do?
Bill C-11 amended various aspects of Canada’s Copyright Act, R.S.C., 1985, c. C-42 (hence its official title, An Act to Amend the Copyright Act, S.C. 2012, c. 20). Many believed that this reform was long overdue. Canada’s Copyright Act had not been substantially amended since 1997. The short title of Bill C-11 – the Copyright Modernization Act – implies that Parliament’s motivation in enacting this legislation, at least in part, was to bring Canada’s copyright laws into the digital networked era.
The enactment of Bill C-11 resulted in several major changes to the Copyright Act. Among them are the expansion of fair dealing, the addition of a series of new exceptions to copyright infringement (or “user’s rights”, discussed in a future post), the implementation of legislative protection for technological protection measures (sometimes referred to as “digital locks”), the creation of a new (lower) range of statutory damages for infringements for non-commercial purposes, and the expansion of moral rights to include performers’ performances.
2. Under C-11, what is “fair dealing,” and how is it different from the U.S. concept of “fair use?”
Fair dealing, set out in ss. 29, 29.1, and 29.2 of the Copyright Act, is the broadest defence to copyright infringement in Canada. Under fair dealing, individuals have the “right” to use a substantial amount of copyrighted expression for certain purposes, without first having to seek or secure the permission of the copyright owner, provided their dealing is fair and, in certain circumstances, they satisfy several attribution requirements. The Supreme Court of Canada (SCC) has described fair dealing as a “user’s right” (CCH Canadian et al v. Law Society of Upper Canada, 2004 SCC 13 at para. 48 (CCH et al)), and has said that “[i]n order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively” (ibid.).
There are two steps to the fair dealing analysis:
First, anyone wishing to rely on fair dealing must establish that their dealing was for done for a “fair dealing purpose.” The list of fair dealing purposes is set out in the Copyright Act, in the sections noted above. Prior to Bill C-11, there were five fair dealing purposes: research, private study, criticism, review, and news reporting. Bill C-11 added three additional fair dealing purposes: parody, satire, and education.
Anyone wishing to argue that their dealing was for the purpose of criticism, review, or news reporting must also satisfy certain attribution requirements. Specifically, they must mention the source of the copyrighted work and, if given in the source, the author, performer, maker or broadcaster (as appropriate).
Second, anyone wishing to rely on fair dealing must establish that their dealing was fair. “Fair” is not defined in the Copyright Act. The SCC, in CCH et al, above, set out a series of factors that “provides a useful analytical framework to govern determinations of fairness in future cases” (CCH et al, above at para. 53). These factors are: the purpose of the dealing, the character of the dealing, the amount of the dealing, alternatives to the dealing, the nature of the work, and the effect of the dealing on the work. Other factors may also be considered by Canadian courts in evaluating fairness. (NB: this is similar, but not identical, to the nonexclusive list of “fair use” factors in U.S. law.)
There is one major difference between the structure of Canada’s fair dealing defence and the U.S. concept of fair use. (While there may be many differences in how courts have applied these two concepts/defences, such a discussion is beyond the scope of this post to address). Under Canadian fair dealing, as noted above, the list of fair dealing purposes is closed. Under U.S. fair use (17 U.S.C. §107), the list of fair use purposes includes “purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” — but it is open-ended.
This difference, in my opinion, was of greater significance prior to the enactment of Bill C-11. I have argued elsewhere that prior to the enactment of Bill C-11, many transformative uses of copyrighted expression would not be protected by fair dealing. The expansion of fair dealing in Bill C-11, through the addition of parody and satire categories, has the potential to significantly expand protection for transformative uses of copyrighted works in Canada.
Stay tuned for more Q&A with Graham Reynolds! Topics to come include the specific impacts of the new law on fan fiction, fanart, vidding, fandom non-fiction, and fanwork creators outside of Canada. For the text of the new law, see Bill C-11. For the full text of the Copyright Act, as amended, see Canadian Copyright Act.