Defences in Canadian copyright law

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In Canada, the Copyright Act provides a monopoly right to owners of copyrighted works. This implies no person can use the work without authorization or consent from the copyright owner. However, certain exceptions in the Act govern circumstances where a work will not be held to have been infringed.

Contents

Principal Defences

Defendants can, where applicable, argue that copyright infringement could not have taken place, as:

  1. There was no copyright in the work created.
  2. There was no copyright in the copied element.
  3. No substantial part was taken. [1]
  4. The work was in the public domain. [2]
  5. The plaintiff is not the true owner of the copyrighted work.
  6. Substantial similarity and access to the original work may be shown, but the work was not copied.

Other defences may be available to the defendants, in cases where some features of copyrighted work exists, but does not constitute infringement. These include:

  1. Public interest
  2. Fair dealing
  3. Other statutory exceptions

Public Interest

At common law, copyright may be overridden for public interest reasons, [3] albeit in very rare circumstances.

In Lion Laboratories v Evans, [4] [5] the copyrighted information about malfunctioning breathalyser machines was reproduced. Such reproduction was held to be justified, despite the nature of material, being confidential and protected by copyright. Court agreed to the defence of public interest, raised by defendants on ground of investigations made regarding the accuracy of the equipment to avoid incorrect readings when used by the police on motorist. As Griffiths LJ noted in his judgment:

I can see no sensible reason why this defence should be limited to cases in which there has been wrongdoing on the part of the plaintiffs.... No doubt it is in such circumstances that the defence will usually arise, but it is not difficult to think of instances where, although there has been no wrongdoing on the part of the plaintiff, it may be vital in the public interest to publish a part of his confidential information. [6]

In Beloff v Pressdram Ltd, [7] the defence of public interest has been interwoven with fair dealing. The court observed fair dealing as a statutory defence limited to infringement of copyright. On the other hand, public interest acts as a defence outside, and independent of statutes, which is based on principles of common law.

The public interest defence is identical to that available in cases concerning breach of confidence, [8] and is available when the necessity to publish more than just short extracts is required. [9] It is distinct from the power arising from the inherent jurisdiction of the courts "to refuse to allow their process to be used [to] give effect to contracts which are ... illegal, immoral or prejudicial to family life because they offend against the policy of the law." [10]

Fair Dealing

The Copyright Act states that fair dealing exists when it is done:

  • for the purpose of research, private study, education, parody or satire; [11]
  • for the purpose of criticism or review, as long as it mentions the source and, if mentioned, the author, performer, maker or broadcaster [12]
  • for the purpose of news reporting, as long as it mentions the source and, if mentioned, the author, performer, maker or broadcaster [13]

In Hubbard v Vosper , Lord Denning MR observed, "It is impossible to define what is 'fair dealing.' It must be a question of degree," and "after all is said and done, it must be a matter of impression." [14] He gave several guidelines for analyzing what is fair or not:

  • The number and extent of the quotations or extracts must be consider. Excess number and length might not be fair.
  • Use as a basis for comment, criticism or review may be fair dealing, but being used to convey the same information as the author, for a rival purpose, may be unfair.
  • Taking long extracts and attaching short comments may be unfair, but short extracts and long comments may be fair.
  • There may be other considerations as well.

Hubbard was adopted in Canadian jurisprudence in 1997 in Allen v Toronto Star Newspapers Ltd, [15] which ousted the 1943 Exchequer Court of Canada case of Zamacois v Douville and Marchand [16] in the area of what constitutes fair dealing in illustrating a current news story. In so holding, Sedgwick J observed:

To the extent that this decision is considered an authority for the proposition that reproduction of an entire newspaper article or, in this case, a photograph of a magazine cover, can never be considered a fair dealing with the article (or magazine cover) for purposes of news summary or reporting, we respectfully disagree.

CCH Canadian Ltd v Law Society of Upper Canada , [17] expanded upon that, with the Supreme Court of Canada holding that fair dealing, as well as related exceptions, is a user’s right. In order to maintain the proper balance between the rights of copyright owners and user’s interest, it must not be interpreted restrictively. [18] It is also integral to the Act, and the defence is always available. [18] The Court gave a two-stage test for determining whether fair dealing applies:

In order to show that a dealing is fair [19] Factors for determining fairness [20]
a defendant must prove:
  1. that the dealing was for a stated purpose, and
  2. that it was fair.
  1. the purpose of the dealing,
  2. the character of the dealing,
  3. the amount of the dealing,
  4. alternatives to the dealing,
  5. nature of the work, and
  6. effect of the dealing on the work.

The effect of CCH has been for Canada becoming less rigid than the UK in interpreting fair dealing, and more flexible than the US approach of fair use in its copyright law. [21] Further expansion of the jurisprudence came in 2012 with SOCAN v Bell Canada [22] and Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright) . [23]

Regarding other specific matters concerning fair dealing:

  • With respect to criticism and review, "Criticism of a work need not be limited to criticism of style. It may also extend to the ideas to be found in a work and its social or moral implications." [24] However, it must be done in good faith. As Lord Denning MR noted in Hubbard, "'It is not fair dealing for a rival in the trade to take copyright material and use it for his own benefit." [25]
  • With respect to news reporting, timeliness may sometimes require the use of copyrighted material without prior permission while the value, importance and interest in the story are still current. [26] It has also been held that "events, such as tragedies in which people are killed, continue to be current events so long as the events themselves continue to feature in the news." [27]

Other statutory exceptions

Sections 29.21–32.3 provide other exceptions from copyright infringement in cases concerning:

  • educational institutions
  • libraries, archives and museums
  • single reproduction of computer programs as backup
  • incidental use
  • ephemeral recording
  • pre-recorded works
  • persons with disabilities
  • purposes of certain federal Acts, such as the Access to Information Act
  • the author making certain copies
  • agriculture fairs
  • religious purposes
  • non-commercial user-generated content
  • certain reproduction for private purposes
  • fixing signals and recording programs for later listening or viewing
  • backup copies (of works other than software)
  • interoperability of computer programs
  • encryption research
  • computer systems and network security, and
  • temporary reproductions for technological processes

Possible defences

Several other arguments have been presented as possible defences for copyright infringement:

  • Section 2(b) of the Canadian Charter of Rights and Freedoms , governing freedom of expression, could be said to hold that limiting the use of copyrighted material is unconstitutional, as opposed to asserting that the copyright scheme as a whole is unconstitutional. Canadian courts have not yet definitely rejected or accepted the proposition. In the case of Queen v Lorimer, [28] the Federal Court of Appeal rejected the Charter defence, but left the possibility of it succeeding in future. The Federal Court of Canada - Trial Division considered this defence in Michelin v CAW, [29] but held that the Charter did not confer the right to use private property to express oneself. Thus, the defendants' freedom of expression had not been infringed.
  • The duty to act in good faith, as noted in Houle v National Bank [30] and Wallace v United Grain Growers Ltd , [31] could be argued to hold that a party may not exercise a right in an unreasonable manner. [32]
  • The US doctrine of copyright misuse has been argued, but not yet accepted, in Canadian courts. [32]

Further reading

Related Research Articles

Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests of copyright holders with the public interest in the wider distribution and use of creative works by allowing as a defense to copyright infringement claims certain limited uses that might otherwise be considered infringement. Unlike "fair dealing" rights that exist in most countries with a British legal history, the fair use right is a general exception that applies to all different kinds of uses with all types of works and turns on a flexible proportionality test that examines the purpose of the use, the amount used, and the impact on the market of the original work.

<span class="mw-page-title-main">Copyright law of Canada</span>

The copyright law of Canada governs the legally enforceable rights to creative and artistic works under the laws of Canada. Canada passed its first colonial copyright statute in 1832 but was subject to imperial copyright law established by Britain until 1921. Current copyright law was established by the Copyright Act of Canada which was first passed in 1921 and substantially amended in 1988, 1997, and 2012. All powers to legislate copyright law are in the jurisdiction of the Parliament of Canada by virtue of section 91(23) of the Constitution Act, 1867.

<i>Théberge v Galerie dArt du Petit Champlain Inc</i> Supreme Court of Canada case

Théberge v Galerie d'Art du Petit Champlain Inc[2002] 2 S.C.R. 336, 2002 SCC 34 is one of the Supreme Court of Canada's leading cases on copyright law. This case interprets the meaning of "reproduction" within the Copyright Act of Canada, and touches on the moral rights to copyrighted material and how much control an author has over his work once it is in the hands of a third party.

<i>CCH Canadian Ltd v Law Society of Upper Canada</i> Supreme Court of Canada case

CCH Canadian Ltd v Law Society of Upper Canada, [2004] 1 SCR 339, 2004 SCC 13 is a landmark Supreme Court of Canada case that established the threshold of originality and the bounds of fair dealing in Canadian copyright law. A group of publishers sued the Law Society of Upper Canada for copyright infringement for providing photocopy services to researchers. The Court unanimously held that the Law Society's practice fell within the bounds of fair dealing.

Canadian constitutional law is the area of Canadian law relating to the interpretation and application of the Constitution of Canada by the courts. All laws of Canada, both provincial and federal, must conform to the Constitution and any laws inconsistent with the Constitution have no force or effect.

<span class="mw-page-title-main">Canadian defamation law</span> Commonwealth jurisdictions

Canadian defamation law refers to defamation law as it stands in both common law and civil law jurisdictions in Canada. As with most Commonwealth jurisdictions, Canada follows English law on defamation issues.

Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations.

Fair dealing in United Kingdom law is a doctrine which provides an exception to United Kingdom copyright law, in cases where the copyright infringement is for the purposes of non-commercial research or study, criticism or review, or for the reporting of current events. More limited than the United States doctrine of fair use, fair dealing originates in Sections 29 and 30 of the Copyright, Designs and Patents Act 1988, and requires the infringer to show not only that their copying falls into one of the three fair dealing categories, but also that it is "fair" and, in some cases, that it contains sufficient acknowledgement for the original author. Factors when deciding the "fairness" of the copying can include the quantity of the work taken, whether it was previously published, the motives of the infringer and what the consequences of the infringement on the original author's returns for the copyrighted work will be.

"Authorization" and "Secondary Infringement" are two instances of "indirect infringement" in Canadian Copyright law. In cases of indirect infringement, individuals can be held liable for infringement even where they did not personally make the copies of the copyrighted subject-matter. This expands the scope of liability. The Canadian courts have dealt with these concepts in a number of cases, several of which will be elaborated upon below.

Fair dealing is a statutory exception to copyright infringement, and is also referred to as a user's right. According to the Supreme Court of Canada, it is more than a simple defence; it is an integral part of the Copyright Act of Canada, providing balance between the rights of owners and users. To qualify under the fair dealing exception, the dealing must be for a purpose enumerated in sections 29, 29.1 or 29.2 of the Copyright Act of Canada, and the dealing must be considered fair as per the criteria established by the Supreme Court of Canada.

<span class="mw-page-title-main">Defences and remedies in Canadian patent law</span>

A patent holder in Canada has the exclusive right, privilege and liberty to making, constructing, using and selling the invention for the term of the patent, from the time the patent is granted. Any person who does any of these acts in relation to an invention without permission of the patent owner is liable for patent infringement.

<span class="mw-page-title-main">Patent infringement in Canadian law</span>

Once an invention is patented in Canada, exclusive rights are granted to the patent holder as defined by s.42 of the Patent Act. Any interference with the patent holder's "full enjoyment of the monopoly granted by the patent" is considered a patent infringement. Making, constructing, using, or selling a patented invention without the patent holder's permission can constitute infringement. Possession of a patented object, use of a patented object in a process, and inducement or procurement of an infringement may also, in some cases, count as infringement.

<i>Euro-Excellence Inc v Kraft Canada Inc</i> Supreme Court of Canada case

Euro-Excellence Inc v Kraft Canada Inc, 2007 SCC 37, [2007] 3 S.C.R. 20, is a Supreme Court of Canada judgment on Canadian copyright law, specifically on the issue of indirect infringement and its application to parallel importation. Kraft Canada sued Euro-Excellence Inc. for copyright infringement due to their importation of Côte d’Or and Toblerone chocolate bars from Europe into Canada. A majority of the court found that the copyright claim could not succeed, although they split on whether the claim failed due to the rights of an exclusive licensee or due to the scope of copyright law.

<i>Hubbard v Vosper</i>

Hubbard v Vosper, [1972] 2 Q.B. 84, is a leading English copyright law case on the defence of fair dealing. The Church of Scientology sued a former member, Cyril Vosper, for copyright infringement due to the publication of a book, The Mind Benders, criticizing Scientology. The Church of Scientology alleged that the books contained material copied from books and documents written by L. Ron Hubbard, as well as containing confidential information pertaining to Scientology courses. Vosper successfully defended the claim under the fair dealing doctrine, with the Court of Appeal deciding unanimously in his favour. The judgment given by Lord Denning clarified the scope and content of the fair dealing defence.

<i>Society of Composers, Authors and Music Publishers of Canada v Bell Canada</i> Supreme Court of Canada case

Society of Composers, Authors and Music Publishers of Canada (SOCAN) v. Bell Canada, 2012 SCC 36, is a leading Canadian case on the application of fair dealing under s. 29 of the Copyright Act. It pertained to the use of previews of musical works on online music services that sell digital files of musical works.

<i>Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright)</i> Supreme Court of Canada case

Alberta (Education) v Canadian Copyright Licensing Agency , 2012 SCC 37, is a Supreme Court of Canada case that considered whether the photocopying of textbook excerpts by teachers, on their own initiative, to distribute to students as part of course materials is fair dealing pursuant to the provisions of the Copyright Act. The Supreme Court, in a 5/4 split, concluded that the Copyright Board made several errors in its analysis of the "fairness factors". Thus, it allowed the appeal and remitted the matter back to the Copyright Board for reconsideration.

<i>Cinar Corp v Robinson</i> Supreme Court of Canada case

Cinar Corp v Robinson is a leading case of the Supreme Court of Canada in the field of copyright law, which has impact in many key aspects of it, including:

<i>Civic Chandran v. Ammini Amma</i>

Civic Chandran v. Ammini Amma is a landmark case in Indian copyright law decided by Kerala High Court in which the judgment held that even substantial copying of copyrighted work is permissible under the fair dealing exception, if the copying is in public interest.

<i>York University v Canadian Copyright Licensing Agency (Access Copyright)</i> Supreme Court of Canada case

York University v Canadian Copyright Licensing Agency , 2021 SCC 32 is a major decision of the Supreme Court of Canada in the matters of the effectiveness of copyright collectives and of fair dealing in Canadian copyright law.

References

  1. ↑ DOC 2010, p. 20.
  2. ↑ DOC 2010, p. 21.
  3. ↑ Vaver 2011, pp. 218–219.
  4. ↑ Lion Laboratories v Evans, [1984]WLR539 (CA).
  5. ↑ DOC 2010, fn. 36.
  6. ↑ Lion Laboratories, at p. 550
  7. ↑ Beloff v Pressdram Ltd, [1973] 1All ER241 .
  8. ↑ Ashdown v Telegraph Group Ltd [2001] EWCA Civ 1142 at para. 56(18 July 2001)
  9. ↑ Ashdown, para. 82
  10. ↑ Hyde Park Residence Ltd v Yelland [2000] EWCA Civ 37 at para. 44(10 February 2000)
  11. ↑ Copyright Act , R.S.C. 1985, c. C-42, s. 29
  12. ↑ Copyright Act , R.S.C. 1985, c. C-42, s. 29.1
  13. ↑ Copyright Act , R.S.C. 1985, c. C-42, s. 29.2
  14. ↑ Hubbard v Vosper , [1972] 2QB84 (November 17, 1971).
  15. ↑ Allen v Toronto Star, 1997 CanLII 16254 , 36 OR (3d) 201(3 November 1997), Superior Court of Justice (Ontario,Canada)
  16. ↑ Zamacois v Douville and Marchand, 1943 CanLII 290 , [1943] 2 DLR 257(1 March 1943)
  17. ↑ CCH Canadian Ltd v Law Society of Upper Canada , 2004 SCC 13 , [2004] 1 SCR 339(4 March 2004)
  18. 1 2 CCH Canadian Limited, par. 48
  19. ↑ CCH Canadian Limited, par. 50
  20. ↑ CCH Canadian Limited, par. 53
  21. ↑ D'Agostino 2008, p. 356.
  22. ↑ Society of Composers, Authors and Music Publishers of Canada v. Bell Canada , 2012 SCC 36 , [2012] 2 SCR 326
  23. ↑ Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) , 2012 SCC 37 , [2012] 2 SCR 345
  24. ↑ Pro Sieben Media AG v Carlton UK Television Ltd [1998] EWCA Civ 2001 (17 December 1998)
  25. ↑ as endorsed in Pro Sieben
  26. ↑ McGuire, Jennifer (September 19, 2013). "Getting a Fair Deal". CBC News.
  27. ↑ Hyde Park, par. 28
  28. ↑ The Queen v James Lorimer,(1984) 77CPR (2nd)262(FCA).
  29. ↑ Michelin v CAW, 1996 CanLII 11755 , [1997] 2 FCR 306(19 December 1996), Federal Court (Canada)
  30. ↑ Houle v National Bank, 1990 CanLII 58 , [1990] 3 SCR 122(22 November 1990)
  31. ↑ Wallace v United Grain Growers Ltd , 1997 CanLII 332 , [1997] 3 SCR 701(30 October 1997)
  32. 1 2 argued, but Court held unnecessary to answer at the time, in Euro-Excellence Inc v Kraft Canada Inc , 2007 SCC 37 at par. 97-98, [2007] 3 SCR 20(26 July 2007)
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