Ariel Katz, ‘Debunking the Fair Use vs Fair Dealing Myth: Have We Had Fair Use All Along?’

ABSTRACT
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.

Katz, Ariel, Debunking the Fair Use vs Fair Dealing Myth: Have We Had Fair Use All Along? (January 1, 2021) in Balganesh, S, Wee Loon, N, and Sun, H (eds), The Cambridge Handbook of Copyright Limitations and Exceptions 111-39 (Cambridge, UK: Cambridge University Press, 2021) doi:10.1017/9781108671101.

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