In the pre-amendments version of the Copyright Act, the heading of Section 29 read simply “Research or private study”.
The whole section read as follows:
”Fair dealing for the purpose of research or private study does not infringe copyright.”
The heading for the same Section 29 of the ”modernized” version of the Copyright Act reads “Research, private, study, etc.”
In addition to research and private study, the section will legitimize unauthorized use of copyrighted works for the purpose of education, parody and satire. I will comment on each of these individually. However, I would like to make two general comments about the structure of this Section (both pre- and post- amendments) and also about the changes made to the heading.
Let’s start with the heading. It used to be the heading for a section that was clearly designed to create a limited exception. By adding the “etc.” at the end, the Parliament has signaled the decision to turn this section into a one-size-fits-all dump for anything that didn’t find its place elsewhere. While a general umbrella section could add structure to the fair dealing provisions of the Act, there was no legal or logical reason to merge the parody exception with the private study exception.
As for the general language of the fair dealing provisions in the Canadian Copyright Act, there is a fundamental difference in how different countries word the introductory language for the copyright exceptions.
For example, the general formula in Canada is:
“Fair dealing for the purpose of [list of purposes] does not infringe copyright”.
It is very similar to the one used in the U.K.:
“Fair dealing with a work for the purpose of [list of purposes] does not infringe any copyright in the work provided that [list of conditions]”.
In Australia, the scheme is:
“A fair dealing with a work does not constitute and infringement of copyright in the work if it is for the purpose of [list of purposes]”.
In France, the wording is
“The author may not prohibit [list of specific uses]”.
The Dutch Copyright Act introduces the exception as follows:
“[list of specific uses] shall not be regarded as an infringement of copyright, provided that [list of conditions]”.
In Russia, the wording is
“It shall be allowed, without the copyright owner’s consent and without payment of any remuneration, to [list of specific uses]”
In the United States, the wording is
“Notwithstanding the provisions of sections [relating to the exclusive rights of copyright owners], the fair use of a copyrighted work, including such use by [list of specific uses] for purposes such as [list of purposes], is not an infringement of copyright.”
As all fair dealing countries, the Canadian wording covers any use, as long as that use is fair and if it is for an enumerated purpose. I contend that the Canadian version potentially creates the broadest exception and thus constitutes the greatest encroachment of copyright – simply because it has so few internal constraints in the general language of the exception.
The amendment that turns a specific case of fair dealing into an umbrella clause that will house exceptions that have very little to do with one another (for example, private study and satire are completely different purposes) is a dangerous step in subjecting the interests of copyright owners to the whims of the public.
BOTTOM LINE: It is a completely unjustified merging of unrelated exceptions under the umbrella of a single provision. The heading of a section relating to stripping copyright owners of their exclusive rights should never end with “etc.”
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Tags:CollectivismPhilosophySmall BusinessNew Copyright ActFair Dealing