The Supreme Court of Canada ruled that the Law Society was not
liable for the copying of cases and their headnotes because what
they were doing amounted to fair dealing. What follows is the essence
of the unanimous ruling of the court on that issue, delivered by
the Chief Justice:
48 Before reviewing the scope of the fair dealing exception under
the Copyright Act, it is important to clarify some general considerations
about exceptions to copyright infringement. Procedurally, a defendant
is required to prove that his or her dealing with a work has been
fair; however, the fair dealing exception is perhaps more properly
understood as an integral part of the Copyright Act than simply
a defence. Any act falling within the fair dealing exception will
not be an infringement of copyright. The fair dealing exception,
like other exceptions in the Copyright Act, is a user's right.
In order to maintain the proper balance between the rights of
a copyright owner and users' interests, it must not be interpreted
restrictively. As Professor Vaver, supra, has explained, at p.
171: "User rights are not just loopholes. Both owner rights
and user rights should therefore be given the fair and balanced
reading that befits remedial legislation."
49 As an integral part of the scheme of copyright law, the s.
29 fair dealing exception is always available. Simply put, a library
can always attempt to prove that its dealings with a copyrighted
work are fair under s. 29 of the Copyright Act. It is only if
a library were unable to make out the fair dealing exception under
s. 29 that it would need to turn to s. 30.2 of the Copyright Act
to prove that it qualified for the library exemption.
50 In order to show that a dealing was fair under s. 29 of the
Copyright Act, a defendant must prove: (1) that the dealing was
for the purpose of either research or private study and (2) that
it was fair.
51 The fair dealing exception under s. 29 is open to those who
can show that their dealings with a copyrighted work were for
the purpose of research or private study. "Research"
must be given a large and liberal interpretation in order to ensure
that users' rights are not unduly constrained. I agree with the
Court of Appeal that research is not limited to non-commercial
or private contexts. The Court of Appeal correctly noted, at para.
128, that "[r]esearch for the purpose of advising clients,
giving opinions, arguing cases, preparing briefs and factums is
nonetheless research". Lawyers carrying on the business of
law for profit are conducting research within the meaning of s.
29 of the Copyright Act.
52 The Copyright Act does not define what will be "fair";
whether something is fair is a question of fact and depends on
the facts of each case. See McKeown, supra, at p. 23-6. Lord Denning
explained this eloquently in Hubbard v. Vosper, [1972] 1 All E.R.
1023 (C.A.), at p. 1027:
It is impossible to define what is `fair dealing'. It must
be a question of degree. You must consider first the number
and extent of the quotations and extracts. Are they altogether
too many and too long to be fair? Then you must consider the
use made of them. If they are used as a basis for comment, criticism
or review, that may be a fair dealing. If they are used to convey
the same information as the author, for a rival purpose, that
may be unfair. Next, you must consider the proportions. To take
long extracts and attach short comments may be unfair. But,
short extracts and long comments may be fair. Other considerations
may come to mind also. But, after all is said and done, it must
be a matter of impression. As with fair comment in the law of
libel, so with fair dealing in the law of copyright. The tribunal
of fact must decide.
...
60 To conclude, the purpose of the dealing, the character of
the dealing, the amount of the dealing, the nature of the work,
available alternatives to the dealing and the effect of the dealing
on the work are all factors that could help determine whether
or not a dealing is fair. These factors may be more or less relevant
to assessing the fairness of a dealing depending on the factual
context of the allegedly infringing dealing. In some contexts,
there may be factors other than those listed here that may help
a court decide whether the dealing was fair.
