Why Canada should not adopt fair use

8/14/2019 Why Canada should not adopt fair use

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WHY CANADA SHOULD NOT ADOPT FAIR USE

A JOINT SUBMISSION* TO THE COPYRIGHTCONSULTATIONS

This submission addresses the issue of fair use, in both thetraditional sense, and in the sense of an expanded and moreflexible fair dealing regime. Fair use should not be adopted as itleads to uncertainty, expensive litigation, and leaves important

public policy decisions to be made by courts instead ofParliament. Further, fair use would reduce revenues available tocreators, (which, in turn would reduce the capacity of creators

to innovate), while potentially undermining legitimate collectivelicensing models. Fair use may also be inconsistent withCanadas international treaty obligations. Finally, in light ofinternational experience rejecting the adoption of fair use itwould be imprudent for Canada to do so absent, at the veryleast, greater study.

1. INTRODUCTION

This paper is jointly submitted by over fiftyprominent Canadian organizations, who representhundreds of thousands of artists, choreographers,composers, directors, educators, illustrators, journalists,makers, musicians, performers, photographers,playwrights, producers, publishers, song writers,videographers, and writers working in Canada.1 Wesubmit this paper because we believe Canada should notadopt a new fair use provision.

2009 Barry Sookman and Dan Glover of McCarthy Ttrault. Theresearch assistance of David Deutsch and Ryan Prescott of McCarthyTtrault is gratefully acknowledged.

*Written by Barry Sookman and Dan Glover of McCarthy Ttrault. For afull list of the signatory organizations, as of October 23, 2009, seeAppendix A. This paper is a revised version of the CopyrightConsultation Submission of September 15, 2009.1 More information on the mandates and activities of the signatoryorganizations can be obtained via the websites listed in Appendix A.


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It is universally acknowledged that protections forcopyright should not be absolute. There arecircumstances dictated by justifiable policy considerations

where exceptions and limitations to copyright arewarranted.2 The Supreme Court has ruled that exceptionsto copyright, including the fair dealing provision, are anintegral part of the Copyright Act.3

In the latest round of copyright consultations,advocates of copyright liberalization have made calls toreplace Canadas longstanding fair dealing provisions witha general fair use provision.4 Alternatively, theseadvocates have argued that the fair dealing provisionsenumerated in the Copyright Act, such as the research orprivate study and the criticism or review provisions,should be treated as merely illustrative examples of

allowable exceptions. The most common proposal toachieve this result is to insert the term such as into thecurrent fair dealing provisions. This expanded fair

2Canada, Supporting Culture and Innovation: Report on the Provisions

and Operation of the Copyright Act(2001) [Section 92 Report] at 7,stating access to culture and the dissemination of information remainimportant public policy objectives for Canadians. Limitations andexceptions to copyright protection strive to balance the rights ofcopyright owners with the access considerations of certain users; Alsosee EC, Green Paper: Copyright in the Knowledge Economy,COM(2008) 466 final (16 July 2008) ([the UE Green Paper] at 4; U.K.,UK Intellectual Property Office, Taking Forward the Gowers Review of

Intellectual Property: Proposed Changes to Copyright Exceptions(Newport: Concept House 2008) [Taking Forward Gowers] at para.26, rejecting an earlier possibility raised by the 2006 Gowers Review ofIntellectual Property, at 4.68-4.71; Austl., Commonwealth, Attorney-General, Copyright Amendment Bill 2006: Explanatory Memorandum at3 [Explanatory Memorandum]; N.Z., Digital Technology and theCopyright Act 1994: Internal Working Paper (online:, July 2002)[Internal Working Paper] at para. 241.3CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R.339at para. 46 [CCH].4 See Michael Geist, Designing A Copyright Law Thats Built To LastToronto Star (17 August 2009), online: Toronto Star ; Jeremy de Beer,Respect and Reality Are Keys to Reform National Post (6 August2009), online: < http://www.jeremydebeer.ca >; Laura J. Murray,Ottawa Roundtable (31 August 2009), online: FairCopyright.ca as examples of the fair use orexpanded fair dealing provisions being sought by user interestgroups. Of position papers filed to date in the 2009 process, that of theCanadian Internet Policy and Public Interest Clinic, affiliated with theUniversity of Ottawa, is representative of the amendments sought.
http://strategis.ic.gc.ca/pics/rp/section92eng.pdfhttp://www.ipo.gov.uk/consult-copyrightexceptions.pdfhttp://www.ipo.gov.uk/consult-copyrightexceptions.pdfhttp://webarchive.nationalarchives.gov.uk/+/http:/www.hm-treasury.gov.uk/media/6/E/pbr06_gowers_report_755.pdfhttp://webarchive.nationalarchives.gov.uk/+/http:/www.hm-treasury.gov.uk/media/6/E/pbr06_gowers_report_755.pdfhttp://www.med.govt.nz/upload/2429/working.pdfhttp://scc.lexum.umontreal.ca/en/2004/2004scc13/2004scc13.htmlhttp://scc.lexum.umontreal.ca/en/2004/2004scc13/2004scc13.htmlhttp://scc.lexum.umontreal.ca/en/2004/2004scc13/2004scc13.htmlhttp://www.thestar.com/sciencetech/article/682006http://www.thestar.com/sciencetech/article/682006http://www.jeremydebeer.ca/images/stories/de_beer_post_text_08-06-09.pdfhttp://www.jeremydebeer.ca/http://www.jeremydebeer.ca/http://www.jeremydebeer.ca/http://www.faircopyright.ca/?p=217http://www.faircopyright.ca/?p=217http://www.ic.gc.ca/eic/site/008.nsf/eng/00923.htmlhttp://www.ic.gc.ca/eic/site/008.nsf/eng/00923.htmlhttp://strategis.ic.gc.ca/pics/rp/section92eng.pdfhttp://www.ipo.gov.uk/consult-copyrightexceptions.pdfhttp://www.ipo.gov.uk/consult-copyrightexceptions.pdfhttp://webarchive.nationalarchives.gov.uk/+/http:/www.hm-treasury.gov.uk/media/6/E/pbr06_gowers_report_755.pdfhttp://webarchive.nationalarchives.gov.uk/+/http:/www.hm-treasury.gov.uk/media/6/E/pbr06_gowers_report_755.pdfhttp://www.med.govt.nz/upload/2429/working.pdfhttp://scc.lexum.umontreal.ca/en/2004/2004scc13/2004scc13.htmlhttp://scc.lexum.umontreal.ca/en/2004/2004scc13/2004scc13.htmlhttp://www.thestar.com/sciencetech/article/682006http://www.thestar.com/sciencetech/article/682006http://www.jeremydebeer.ca/images/stories/de_beer_post_text_08-06-09.pdfhttp://www.jeremydebeer.ca/http://www.faircopyright.ca/?p=217http://www.faircopyright.ca/?p=217http://www.ic.gc.ca/eic/site/008.nsf/eng/00923.html


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dealing proposal would have a similar effect toimplementing a fair use provision, as it would create anopen-ended system allowing users to argue that any

given purpose is fair.5 These proposed amendments are not needed.

Canada already has broad and flexible fair dealingprovisions. Pro-reform advocates have acknowledgedthat the Supreme Court of Canadas landmark fair dealingdecision in CCH6 instantly ranks as one of the strongestpro-user rights decisions from any high court in theworld.7

Moreover, these proposals would go in precisely thewrong direction. At a time when most stakeholders arecalling for greater certainty and clarity in Canadian

copyright law, these proposals to replace the specific fairdealing provisions that Parliament has established withbroad, open-ended user rights would leave copyrightowners and users guessing where copyright ends anduser rights begin.

The fair use model is not a panacea for solvingdifficult problems resulting from digitization and theinternet. Fair use has been described as anastonishingly bad system amounting to little more thanthe right to hire a lawyer.8 Fair use and/or expandedfair dealing systems are models that many of our tradingpartners including the United Kingdom, the European

Union, Australia and New Zealand have expresslyrejected. So did Canada when it last consideredintroducing an expanded fair dealing or fair use provisioninto Canadian law. In fact, of the 164 countries that aremembers of the Berne Convention, only four haveimplemented it.9

5 Jeremy de Beer and Michael Geist, Developing Canadas IntellectualProperty Agenda in Jean Daudelin & Daniel Schwanen eds., CanadaAmong Nations (Montreal: McGill-Queens University Press, 2007) 157at 177.6CCH, supra note 3.7 Michael Geist, Low-tech case has high-tech impact Toronto Star(22

March 2004), online: .8 Lawrence Lessig, Free Culture (New York: The Penguin Press, 2004) at187 [Lessig]. He is not alone among U.S. prominent reformists inconcluding that fair use is a broken system. See Section 2(c) below.9,The World Intellectual Property Organization Berne ContractingParties, online: The World Intellectual Property Organization
http://www.jeremydebeer.ca/images/stories/de_beer_and_geist.pdfhttp://www.jeremydebeer.ca/images/stories/de_beer_and_geist.pdfhttp://scc.lexum.umontreal.ca/en/2004/2004scc13/2004scc13.htmlhttp://scc.lexum.umontreal.ca/en/2004/2004scc13/2004scc13.htmlhttp://www.michaelgeist.ca/resc/html_bkup/mar222004.htmlhttp://www.michaelgeist.ca/resc/html_bkup/mar222004.htmlhttp://www.michaelgeist.ca/resc/html_bkup/mar222004.htmlhttp://www.free-culture.cc/freeculture.pdfhttp://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15http://www.jeremydebeer.ca/images/stories/de_beer_and_geist.pdfhttp://www.jeremydebeer.ca/images/stories/de_beer_and_geist.pdfhttp://scc.lexum.umontreal.ca/en/2004/2004scc13/2004scc13.htmlhttp://www.michaelgeist.ca/resc/html_bkup/mar222004.htmlhttp://www.michaelgeist.ca/resc/html_bkup/mar222004.htmlhttp://www.free-culture.cc/freeculture.pdfhttp://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15


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Far from solving copyright problems, adopting fairuse would only exacerbate them. Its drawbacks arenumerous. Fair use would lead to uncertainty, expensive

litigation and leave important public policy decisions to bemade by courts instead of Parliament. It would reducerevenues available to the Canadian creative industries;revenues which are vital to their indigenous growth. Itwould undermine legitimate licensing models includingcollective licensing of copyrights.

By expanding what can be done withoutinfringement, fair use could also significantly undercut theexisting private copying levy as well as prospects forextending that levy to new media such as Digital AudioRecording Devices (DARs) and to content other thanmusic. It would leave uncertain what uses of works are

permissible in a variety of other settings as well, such asuses in libraries and educational institutions.

Creating an expanded fair dealing or fair use modelcould also put Canada off-side its treaty obligations, whichrequire that exceptions comply with the three-step-test.10

The Government should not amend the Act tointroduce a fair use or expanded fair dealing model intoCanada. At the very least, it should not do so withoutfurther detailed consideration of its potential adverseeffects.11

2. INTERNATIONAL STANDARDSFOR EXCEPTIONSAND LIMITATIONS

. The only fair use regimes are the UnitedStates, Israel, Singapore, and the Philippines.10 Under the Berne Convention, TRIPS and NAFTA, Canada agreed toconfine limitations or exceptions to certain special cases that do notconflict with a normal exploitation of a right or unreasonably prejudicethe legitimate interests of authors or right holders. See section 4(b)below. Berne Convention for the Protection of Literary and ArtisticWorks, Sept. 9, 1886; revised July 24, 1971 and amended 1979, 1B.D.I.E.L. 715 [Berne Convention]; Agreement on Trade-RelatedAspects of Intellectual Property Rights, 15 April 1994, 33 I.L.M. 1197[TRIPS]; North American Free Trade Agreement Between theGovernment of Canada, the Government of Mexico and theGovernment of the United States, 17 December 1992, Can. T.S. 1994No. 2, 32 I.L.M. 289 (entered into force 1 January 1994) [NAFTA].11 In this paper we sometimes refer to fair use without referring to anexpanded fair dealing model. Unless the context suggests otherwisethe terms fair use and expanded fair dealing are usedinterchangeably.
http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15http://www.wipo.int/export/sites/www/treaties/en/ip/berne/pdf/trtdocs_wo001.pdfhttp://www.wipo.int/export/sites/www/treaties/en/ip/berne/pdf/trtdocs_wo001.pdfhttp://www.wto.org/english/docs_e/legal_e/27-trips.pdfhttp://www.wto.org/english/docs_e/legal_e/27-trips.pdfhttp://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/nafta-alena/texte/index.aspxhttp://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/nafta-alena/texte/index.aspxhttp://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/nafta-alena/texte/index.aspxhttp://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/nafta-alena/texte/index.aspxhttp://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15http://www.wipo.int/export/sites/www/treaties/en/ip/berne/pdf/trtdocs_wo001.pdfhttp://www.wipo.int/export/sites/www/treaties/en/ip/berne/pdf/trtdocs_wo001.pdfhttp://www.wto.org/english/docs_e/legal_e/27-trips.pdfhttp://www.wto.org/english/docs_e/legal_e/27-trips.pdfhttp://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/nafta-alena/texte/index.aspxhttp://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/nafta-alena/texte/index.aspxhttp://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/nafta-alena/texte/index.aspx


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The dominant approach worldwide in creatingexceptions and limitations to copyright is a closed

approach that identifies specific special uses of works thatdo not infringe copyright. By contrast, under the open-ended fair use model, any reproductions or other uses ofa work can theoretically not be infringing if they are foundby a court to be fair. This model has been rejected ornot adopted in almost every country or jurisdiction thathas considered it, including recently in Australia, theUnited Kingdom, New Zealand, and the European Union.

A. THE COMMONWEALTH

While a number of major Commonwealth countries

have considered the possibility of changing their long-established fair dealing systems to a fair use approach,each has rejected doing so in favour of incrementalreforms achieved by way of targeted exceptions. Inrejecting fair use, Australia, the United Kingdom and NewZealand have identified international treaty compliance,the introduction of uncertainty into longstandingrelationships and the other reasons set out below fordoing so.

i. Australia

Australia thoroughly debated and then rejected

pressures to introduce a fair use or expanded fair dealingmodel. The 2005 government issues paper Fair Use andOther Copyright Exceptions (the Issues Paper) soughtpublic consultation on a copyright exceptions reform,including an expanded fair use right.1 The Issues Paperdepicted the fair use system as an international anomalyand noted the following drawbacks of the system:

Any attempt to list the uses that qualify as afair use is extremely difficult as thedistinction between fair use and infringementcan be unclear and not easily defined.

1 Austl., Commonwealth, Attorney-General, Fair Use and OtherCopyright Exceptions: An examination of fair use, fair dealing andother exceptions in the Digital Age (online:, 2005) at 14.1-14.15.
http://www.ag.gov.au/agd/WWW/rwpattach.nsf/VAP/(03995EABC73F94816C2AF4AA2645824B)~FairUseIssuesPaper050505.pdf/$file/FairUseIssuesPaper050505.pdfhttp://www.ag.gov.au/agd/WWW/rwpattach.nsf/VAP/(03995EABC73F94816C2AF4AA2645824B)~FairUseIssuesPaper050505.pdf/$file/FairUseIssuesPaper050505.pdfhttp://www.ag.gov.au/agd/WWW/rwpattach.nsf/VAP/(03995EABC73F94816C2AF4AA2645824B)~FairUseIssuesPaper050505.pdf/$file/FairUseIssuesPaper050505.pdfhttp://www.ag.gov.au/agd/WWW/rwpattach.nsf/VAP/(03995EABC73F94816C2AF4AA2645824B)~FairUseIssuesPaper050505.pdf/$file/FairUseIssuesPaper050505.pdfhttp://www.ag.gov.au/agd/WWW/rwpattach.nsf/VAP/(03995EABC73F94816C2AF4AA2645824B)~FairUseIssuesPaper050505.pdf/$file/FairUseIssuesPaper050505.pdfhttp://www.ag.gov.au/agd/WWW/rwpattach.nsf/VAP/(03995EABC73F94816C2AF4AA2645824B)~FairUseIssuesPaper050505.pdf/$file/FairUseIssuesPaper050505.pdf


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The open-ended fair use exception is broaderin scope than the Australian fair dealingexceptions, which are restricted to specific

purposes. There are no clear-cut rules for

distinguishing between infringement and afair use. The only way to get a definitiveanswer on whether a particular use is a fairuse is to have it resolved in a court.

Outcomes in fair use disputes can be hard topredict. Applying the statutory principlescan be difficult for the courts. Fair use caseshave been characterised by decisions inlower courts that have been overturned in

courts of appeal and reversed again in theUnited States Supreme Court.

Copyright owners may vigorously oppose fairuse claims to ensure that the doctrine doesnot expand by increments.

Defending a fair use claim in court can beexpensive. The defendants in many of thefair use cases that are fought out in thecourts are corporations with considerablefinancial resources.2

In a position paper considering the Issues Paper,

the Intellectual Property Research Institute of Australiaidentified additional drawbacks to fair use, including:

Overclaiming and overcaution: uncertaintymay lead to overcaution, with users seekingpermission even where they almost certainlydo not need it.

Reaction of courts: U.S. courts are generallyfar more inclined to get into policy debatesthan Australian courts, creating uncertaintyabout how courts in Australia would react toa fair use doctrine until case law develops.

Would it fix the problem? It is unclearwhether fair use would cover all theproblems identified with the Australian law ofcopyright exceptions. Because fair use is a

2Ibid. at 7.9, 7.12.
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court-determined and court-developeddoctrine in the U.S., it is often unclearwhether particular uses would be allowed

even in the U.S. let alone in Australia if afair use defence were introduced.3

The Issues Paper also identified the further risk thatconverting to a fair use model could cause considerabledisruption to existing business and licensingarrangements. It warned that:

If the Government were to consider amendmentsit may not be an appropriate solution to simplyreplace the fair dealing exceptions or add onan open ended fair use provision. The relationshipof such a provision to other exceptions andstatutory licences in the Copyright Actwould [sic]

be carefully considered to avoid problems arisingfrom any overlap and consequent disruption toexisting business and licensing arrangements.4

Following the release of the Issues Paper, thegovernment rejected both the fair use and expanded fairdealing systems in favour of enacting a number ofdetailed and specific exceptions designed with particularinstitutions and purposes in mind. In so deciding, thegovernment noted that:

The present system of exceptions and statutorylicences that apply to specific uses of copyrightmaterial [] has been maintained for many years

because it gives copyright owners and copyrightusers reasonable certainty as to the scope of actsthat do not infringe copyright.5

By contrast, it stated that adopting the specific exceptionmethod would:

Restore credibility to the Act by better reflectingpublic opinion and practices. It is consistent withcurrent policy in providing specific exceptionsthat give certainty for copyright owners and userswith respect to the scope of permitted acts.6

3 Kimberlee Weatherall, Fair use, fair dealing: The Copyright

Exceptions Review and the Future of Copyright Exceptions in Australia(Background paper to oral presentation, SNAPSHOT 3 20 May 2005),[online: at 8-9.4Ibid. at 13.6.5 Explanatory Memorandum supra note 2 at 7.6Ibid. at 9.
http://www.ipria.org/publications/occasional%20papers/Occasional%20Paper%203.05.pdfhttp://www.ipria.org/publications/occasional%20papers/Occasional%20Paper%203.05.pdfhttp://www.ipria.org/publications/occasional%20papers/Occasional%20Paper%203.05.pdfhttp://www.ipria.org/publications/occasional%20papers/Occasional%20Paper%203.05.pdfhttp://www.ag.gov.au/agd/WWW/rwpattach.nsf/VAP/(03995EABC73F94816C2AF4AA2645824B)~FairUseIssuesPaper050505.pdf/$file/FairUseIssuesPaper050505.pdfhttp://www.ag.gov.au/agd/WWW/rwpattach.nsf/VAP/(03995EABC73F94816C2AF4AA2645824B)~FairUseIssuesPaper050505.pdf/$file/FairUseIssuesPaper050505.pdfhttp://www.ag.gov.au/agd/WWW/rwpattach.nsf/VAP/(03995EABC73F94816C2AF4AA2645824B)~FairUseIssuesPaper050505.pdf/$file/FairUseIssuesPaper050505.pdfhttp://legislation.gov.au/ComLaw/Legislation/Bills1.nsf/0/D052936F5620B888CA25721000039385/$file/06157em.pdfhttp://legislation.gov.au/ComLaw/Legislation/Bills1.nsf/0/D052936F5620B888CA25721000039385/$file/06157em.pdfhttp://legislation.gov.au/ComLaw/Legislation/Bills1.nsf/0/D052936F5620B888CA25721000039385/$file/06157em.pdfhttp://www.ipria.org/publications/occasional%20papers/Occasional%20Paper%203.05.pdfhttp://www.ipria.org/publications/occasional%20papers/Occasional%20Paper%203.05.pdfhttp://www.ipria.org/publications/occasional%20papers/Occasional%20Paper%203.05.pdfhttp://www.ipria.org/publications/occasional%20papers/Occasional%20Paper%203.05.pdfhttp://www.ag.gov.au/agd/WWW/rwpattach.nsf/VAP/(03995EABC73F94816C2AF4AA2645824B)~FairUseIssuesPaper050505.pdf/$file/FairUseIssuesPaper050505.pdfhttp://legislation.gov.au/ComLaw/Legislation/Bills1.nsf/0/D052936F5620B888CA25721000039385/$file/06157em.pdf


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An extended fair dealing model was considered lessdesirable, as:

This approach may add to the complexity of the

Act. There would be some uncertainty forcopyright owners until case law developed. Untilthe scope was interpreted by the courts, theremay be disruption to existing licensingarrangements. Similarly, a user consideringrelying on this exception would need to weigh thelegal risk of possible litigation.7

Australia also rejected the fair use and expanded fairdealing models based on concerns that they do notcomply with the three-step-test mandated by the BerneConvention and theAgreement on Trade-Related Aspectsof Intellectual Property Rights (TRIPS).8 It concluded

that adopting either system is not consistent with treatyobligations to include such general uses in a flexibleexception.9

ii. United Kingdom

The United Kingdom also considered moving to afair use or expanded fair dealing model. The 1981consultative document Reform of the Law Relating toCopyright, Designs and Performers Protection specificallyrejected a proposal to do so.10 The governments reasonsremain valid today:

The Government is appreciative of the Whitforddesire to simplify the law where possible.However, for the reasons indicated above, it doesnot feel that there is a convincing case foramending along the lines suggested and, inview of the difficulties already experienced bycopyright owners in protecting their rights, the

7Ibid. at 10.8 Ibid. at 7-8. Sam Ricketson also praises the predictability of theAustralian exceptions and compulsory licenses, noting that the verydetail and precision of these provisions makes them more transparentand easier to analyze. Ricketson WIPO at 73.9Ibid. at 10.10 Although the Whitford Report recommended the general exception,it conceded that it was vulnerable to dangers of producing uncertaintyand misuse. See: U.K., The Honourable Mr. Justice Whitford, Copyrightand designs law: report of the Committee to Consider the Law ofCopyright and Designs (London: HMSO, 1977). Report of the Committee to Consider the Law of Copyright andDesigns (1977), at para. 675.
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Government does not feel it would be justified inmaking an amendment which might result infurther encroachments into the basic copyright.11

The issue was canvassed again in the UK very recently. Inthe 2008 report Taking Forward the Gowers Review ofIntellectual Property: Proposed Changes to CopyrightExceptions, the UK government rejected moving to anopen-ended fair use model favouring instead adoptingspecific exceptions thought to be desirable in UK law.12

In refusing to adopt fair use, the government pointed tothe need for certainty in the law and to ensure that UKtreaty obligations could be met:

Identifying where the boundaries should lie iscritical in ensuring that our copyright systemremains fit for todays world. A system of strong

rights, accompanied by limited exceptions, willprovide a framework that is valued by andprotects right holders and is both understood andrespected by users.

We also need to comply with the internationallegal framework [and] also need to ensure thatcopyright law does not place unnecessaryadministrative burdens on business and can beunderstood and is respected by the generalpublic.13

iii. New Zealand

In its recent comprehensive copyright review, NewZealand also specifically considered and rejected a fairuse regime. The governments Internal Working Paperidentified some significant problems with fair use,including:

the fragility of New Zealands smallmarketplace could be adversely impacted bysuch a broad exception;

the problem that fair use may not complywith the three-step test;

11 U.K., Secretary of State, Reform of the Law Relating to Copyright,Designs and Performers Protection by Dept. of Trade and Industry(London: HMSO, July 1981) at 45-46.12Taking Forward Gowers, supra note 2.13Ibid., at 1, 6.


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the need to preserve a balance betweencopyright owners and users; and

the uncertainty and unpredictabilityassociated with fair use.14

The New Zealand government stated that nocompelling reason had been presented to adopt any ofthe fair dealing/fair use international models raised(including fair use) and described its existing closed fairdealing system as technologically neutral and able toadapt to the digital environment with only minorchanges.15

B. EUROPEAN UNION

The European Union has implemented a closedmodel for exceptions and limitations.16 The exceptionsand limitations mandated by various directives were theresult of painstaking consultation processes lasting from1995 to 2001.17

In the lead up to the passage of the InformationSociety Directive, the 1996 Follow Up Paper concludedthat the most desirable approach was to set out closelydefined fair use exceptions/limitations to the exclusiveright destined to accommodate the interests of users orthe public at large.18

Eight years after the passage of the Directive,

Europe is continuing along the same path. In the currentEU Green Paper process, the Commission has not

14 Internal Working Paper,supra note 2, at paras. 18, 246-497; DigitalTechnology and the Copyright Act 1994: A Discussion Paper (July 2001)(A Discussion Paper) at paras. 192-194; 260.15

Ibid., at para. 264; N.Z., Digital Technology and the Copyright Act1994: Position Paper (December 2002) at paras. 160-61. Also see theNew Zealand Governments archive page for all studies on copyrightreform.16 Bernt Hugenholtz, Mireille Van Eechoud, Stef Van Gompel, Guibault,Lucie et al., The Recasting of Copyright & Related Rights for theKnowledge Economy Final Report (November 2006) at 61. The

exceptions and limitations appear in four of the eight copyright-relateddirectives: the Computer Programs Directive, the Rental RightDirective, the Database Directive and the Information SocietyDirective.17 EC, Communication on Copyright and Related Rights in theInformation Society(1996: IP/96/1042).18Ibid.
http://www.med.govt.nz/templates/MultipageDocumentTOC____991.aspxhttp://www.med.govt.nz/templates/MultipageDocumentTOC____991.aspxhttp://www.med.govt.nz/upload/2429/working.pdfhttp://www.med.govt.nz/upload/2334/digital-position.pdfhttp://www.med.govt.nz/upload/2334/digital-position.pdfhttp://www.med.govt.nz/templates/ContentTopicSummary____1103.aspxhttp://europa.eu/rapid/pressReleasesAction.do?reference=IP/96/1042&format=HTML&aged=1&language=EN&guiLanguage=enhttp://europa.eu/rapid/pressReleasesAction.do?reference=IP/96/1042&format=HTML&aged=1&language=EN&guiLanguage=enhttp://europa.eu/rapid/pressReleasesAction.do?reference=IP/96/1042&format=HTML&aged=1&language=EN&guiLanguage=enhttp://www.med.govt.nz/templates/MultipageDocumentTOC____991.aspxhttp://www.med.govt.nz/templates/MultipageDocumentTOC____991.aspxhttp://www.med.govt.nz/upload/2429/working.pdfhttp://www.med.govt.nz/upload/2334/digital-position.pdfhttp://www.med.govt.nz/templates/ContentTopicSummary____1103.aspxhttp://europa.eu/rapid/pressReleasesAction.do?reference=IP/96/1042&format=HTML&aged=1&language=EN&guiLanguage=enhttp://europa.eu/rapid/pressReleasesAction.do?reference=IP/96/1042&format=HTML&aged=1&language=EN&guiLanguage=en


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revisited the question of whether closed exceptions arewarranted. Rather, it is refining existing exceptions andconsidering whether further specific exceptions should be

created.19The Information Society Directive sets out twenty-

one specific situations that may give rise to an exceptionor limitation in a member state.20 The targeted nature ofthese provisions is seen as essential to compliance withthe Berne/TRIPs three-step test,21 which is also codified inthe Directive itself.22

C. THE UNITED STATES

The United States has a significant history of usingthe fair use model. In that country, there is a significant,and well-respected, group of individuals who are of the

opinion that fair use has become ungainly and costly, andhas led to significant uncertainty for both rights holdersand users. Its flexibility has proven the converse of thecertainty and clarity normally sought in a general law.

One academic stated [t]he doctrine seems ill-defined at best, and empty at worst.23 Another wrote

19EU Green Paper, supra note 2, at 4-20.

20 Directive 2001/29/EC of the European Parliament and of the Councilof 22 May 2001 on the harmonisation of certain aspects of copyrightand related rights in the information society, Art. 5 [the Information

Society Directive]. Only one of the exceptions is mandatory, with theremaining twenty exceptions and limitations to be considered by eachmember on a case-by-case basis.21 Institute for Information Law, University of Amsterdam, FinalReport: Study on the Implementation and Effect in Member StatesLaws of Directive 2001/29/EC on the Harmonisation of Certain Aspectsof Copyright and Related Rights in the Information Society, February2007 [Implementation Study] at 57, noting that the Czech Republic,France, Greece, Hungary, Italy, Luxembourg, Malta, Poland, Portugaland Slovakia have incorporated the test into substantive law and thatthe test was referred to and applied by courts in Austria, Belgium,Finland, and the Netherlands; also see Kristin Friberg, The SwedishImplementation of the InfoSoc Directive (MA Thesis, JnkpingUniversity International Business School, 2006) [unpublished] at 23-24,concluding that the specific language of the private use limitation inArt. 5(2b) of the Directive was necessary to ensure compliance withthe three-step test, and Sam Ricketson, WIPO Study on Limitationsand Exceptions of Copyright in the Digital Environment, SCCR/9/7(June 2003) [Ricketson, "WIPO"] at 70, concluding that Art. 5 of theDirective is at the other end of the spectrum from the U.S. in termsof three-step compliance.22 The Information Society Directive,ibid., Art. 5.5.
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0466:FIN:EN:PDFhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTMLhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTMLhttp://ec.europa.eu/internal_market/copyright/docs/studies/infosoc-study-annex_en.pdfhttp://www.adbj.se/2007/TheSwedishImplementationoftheInfoSocDirective.pdfhttp://www.adbj.se/2007/TheSwedishImplementationoftheInfoSocDirective.pdfhttp://www.wipo.int/edocs/mdocs/copyright/en/sccr_9/sccr_9_7.dochttp://www.wipo.int/edocs/mdocs/copyright/en/sccr_9/sccr_9_7.dochttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTMLhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTMLhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2008:0466:FIN:EN:PDFhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTMLhttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTMLhttp://ec.europa.eu/internal_market/copyright/docs/studies/infosoc-study-annex_en.pdfhttp://www.adbj.se/2007/TheSwedishImplementationoftheInfoSocDirective.pdfhttp://www.adbj.se/2007/TheSwedishImplementationoftheInfoSocDirective.pdfhttp://www.wipo.int/edocs/mdocs/copyright/en/sccr_9/sccr_9_7.dochttp://www.wipo.int/edocs/mdocs/copyright/en/sccr_9/sccr_9_7.dochttp://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML


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fair use has become too many things to too many peopleto be much specific value to anyone.24

Some of the problems with the fair use model were

highlighted by Lawrence Lessig, one of the popularadvocates for U.S. copyright reform. In his book FreeCulture, he stated that fair use amounted to little morethan the right to hire a lawyer.25 He explained:

And as lawyers love to forget, our system fordefending rights such as fair use is astonishinglybadin practically every context, but especiallyhere. It costs too much, it delivers too slowly, andwhat it delivers often has little connection to the

justice underlying the claim. The legal systemmay be tolerable for the very rich. For everyoneelse, it is an embarrassment to a tradition that

prides itself on the rule of law.Judges and lawyers can tell themselves that fairuse provides adequate breathing room betweenregulation by the law and the access the lawshould allow. But it is a measure of how out oftouch our legal system has become that anyoneactually believes this. The rules that publishersimpose upon writers, the rules that filmdistributors impose upon filmmakers, the rulesthat newspapers impose upon journalists theseare the real laws governing creativity. And theserules have little relationship to the law withwhich judges comfort themselves.26

Many other U.S. scholars have also concluded that thereare significant problems with the fair use model.27

23 Darren Hudson Hick, Mystery and Misdirection: Some Problems ofFair Use and Users Rights (2009) 56 Journal of the Copyright Societyof the U.S.A. 485 at 500.24 Michael J. Madison, Rewriting Fair Use and the Future of CopyrightReform (2005-06) 39 Cardozo Arts & Ent. L.J. 391.25 Lessig, supra note 8, at 187. Apart from the direct costs to litigants,the high transaction costs incurred by rights holders in a fair usesystem would be passed indirectly to consumers in the form of higherprices.26 Ibid. Apart from the direct costs to litigants, the high transactioncosts incurred by rights holders in a fair use system would be passed

indirectly to consumers in the form of higher prices.27 See Rebecca Tushnet, Copy this Essay: How Fair Use DoctrineHarms Free Speech and How Copying Serves It (2004) 114 Yale L.J.535 at 554, concluding that flexible, fair use requires case-by-caseapplication and provides no predictability for a publisher curious toknow what it can do outside the barest minimum of quotation ofliterary works. Also see Neil Netanel, Copyrights Paradox(New York:
http://www.tushnet.com/copythisessay.pdfhttp://www.tushnet.com/copythisessay.pdfhttp://www.tushnet.com/copythisessay.pdfhttp://www.tushnet.com/copythisessay.pdf


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While Canadian advocates of fair use describe theUnited States as a bastion of flexibility, such acharacterization risks inaccuracy to the extent that it

treats exceptions and limitations as part of a singleunified program. Rather, as scholars have pointed out:

[B]efore a fair use defence is adopted as a modelfor change it is important to consider the contextin which the fair use defence operates at presentin the United States. This in turn requires anappreciation not only of practical arrangementsand the specific environments in which the fairuse defence operates, but also consideration ofcertain aspects of US legal culture.

[]

In order to understand how the fair use defence

operates in practice in the United States it isimportant to appreciate that a complex web ofunderstandings, agreements and policystatements support the legislative provisions.28

Criticisms of fair use were summarized in a studyby Professor Giuseppina DAgostino of Osgoode Hall LawSchool. This study, which was commissioned by the

Oxford University Press, 2008) at 16. This view is shared by the scholarDavid Nimmer, who calls fair use a fairy tale whose complexitieshave required four separate visits to the Supreme Court, and yet haveresulted in a system whose upshot would be the same had

Congress instituted a dartboard rather than the particular four fair usefactors embodied in the Copyright Act: David Nimmer, Fairest ofthem All and Other Fairy Tales of Fair Use (2003) 66 Law andContemporary Problems 263 at 280 [Nimmer]; Gideon Parchomovskyet al Fair Use Harbors (2007) 93 Virginia Law Review 1483 at 1484-1486: Fair use is at once the most important and most troublesomedoctrine in copyright lawthe case law is characterized by widelydivergent interpretations of fair use, divided courts, and frequentreversals. The state of affairs has prompted a leading commentator toconclude that the doctrine of fair use is impervious to generalizationand that attempts to drive its meaning from careful analysis of specificcases are futile.28 Robert Burrell and Alison Coleman, Copyright Exceptions: The DigitalImpact(Cambridge: UK; New York: Cambridge University Press, 2005)at 268 (Burrell and Coleman), including among these supportsguidelines and agreements that were reached only after protractednegotiations, prominent cases, and out-of-court settlements, whichmight prove impossible to replicate in another jurisdiction. Also seeGiuseppina DAgostino, Healing Fair Dealing, CLPE Research Paper28/2007, at 2 [DAgostino, Healing Fair Dealing], noting the criticalimportance in the U.S. of negotiated industry-specific guidelines inaffecting fair use review by the courts.
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Department of Canadian Heritage, highlighted majorproblems with fair use:

[S]ome remarks must be made on the burgeoning

body of scholarship, studies and reportscriticizing US fair use. Fair use is said to be ill,though hardly dead yet. Many have called onCongress to clarify fair use. There has been noshortage of solutions proposed. But to dateCongress has resisted changing fair use. Thecourts have also failed to simplify fair use byattempting to establish bright-line presumptions(1) that commercial uses are unfair, (2) favouringplaintiffs unpublished works, and (3) morerecently, that works must be transformative toconstitute fair use. Moreover, it is increasinglyexpensive to mount litigation to clarify the scope

of use and some users may be risk-averse tobegin with. The American Intellectual PropertyLaw Association estimates the average cost todefend a copyright case to be just under onemillion US dollars.

Although fair uses attention to context iscertainly salutary, it is so case-specific that itoffers precious little to artists, educators,

journalists, Internet speakers, other[s] who wantto use the copyrighted work. Googles digitizationproject of large library collections is a recent signthat in the digital age, issues of fair use havetaken on urgency.29

The same study found that the fair use doctrine isnot the panacea approach some have made it out to be,and noted that of the few other jurisdictions to adopt theU.S. model, Singapore is suffering considerable growingpains, as its courts are reluctant to consider US fair usecases causing much disorder.30 The study concluded thatadopting U.S. law without further study would beinadvisable, as:

29 Giuseppina DAgostino, Fair Dealing After CCH report prepared forthe Department of Heritage, June 2007, at 33-34 [DAgostino, AfterCCH]; Also see Jennifer Urban and Laura Quilter, Efficient Process orChilling Effects? (online: ) noting at 12-13 the notorious difficulty ofdefining a line for fair use and examining the difficulty of making sucha claim in the notice-and-takedown context.30 DAgostino, After CCH supra note 40 at 40-41.
http://www.canadianheritage.gc.ca/pc-ch/org/sectr/ac-ca/pda-cpb/publctn/cch-2007/CCH-2007-eng.pdfhttp://static.chillingeffects.org/Urban-Quilter-512-summary.pdfhttp://static.chillingeffects.org/Urban-Quilter-512-summary.pdfhttp://static.chillingeffects.org/Urban-Quilter-512-summary.pdfhttp://static.chillingeffects.org/Urban-Quilter-512-summary.pdfhttp://www.canadianheritage.gc.ca/pc-ch/org/sectr/ac-ca/pda-cpb/publctn/cch-2007/CCH-2007-eng.pdfhttp://static.chillingeffects.org/Urban-Quilter-512-summary.pdfhttp://static.chillingeffects.org/Urban-Quilter-512-summary.pdfhttp://static.chillingeffects.org/Urban-Quilter-512-summary.pdfhttp://static.chillingeffects.org/Urban-Quilter-512-summary.pdf


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This approach would cause more perplexity thancurrently exists. One must be very careful whenimporting legal devices from other jurisdictions.31

3. CANADA HAS ALREADY THOROUGHLYSTUDIEDAND REJECTEDA FAIR USE SYSTEM

In 1985, the Sub-Committee on the Revision ofCopyright specifically rejected replacing fair dealing withan open-ended expanded fair dealing or fair use system.It did so for two reasons. First, it concluded that Canadasfair dealing regime worked well and did not need such amajor overhaul:

This scheme of inquiry in connection with fair

dealing has worked well. There has been verylittle litigation in Canada on this issue. Indeed,there has not been a great deal of litigation inany of the Commonwealth countries which have asimilar provision. This alone is a good reason notto alter drastically the existing fair dealingprovision. Submissions to the Sub-Committeeattributed the success of the existing fair dealingscheme to the sequential tests used in applyingthe provision: infringement must first beestablished and then the dealing must be fair andfor one of the enumerated purposes.

The Sub-Committee is of the view that this

scheme should be retained. It settles manypotential lawsuits at an early stage.1

Second, the Sub-Committee looked closely at theU.S. system and concluded that it would not be advisableto import this substantially wider concept to Canada:

The wider approach in the United States hasgiven rise to much litigation there, and hascaused the issue to be raised as a matter ofcourse in all copyright actions. It has createdrather than curtailed the uncertainty surroundingthe concept.2

In the 1986 Government Response to the Report of

the Sub-Committee, the government of Canadaspecifically agreed that the present fair dealing

31Ibid.1 Canada, Sub-Committee on the Revision of Copyright, A Charter ofRights for Creators, (October 1985) at 64.2Ibid., at 63-66.


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provisions should not be replaced by the substantiallywider fair use concept.3

4. IMPORTING FAIR USE INTO CANADA WOULD RISKADVERSECONSEQUENCES

A. FAIR USE WOULD UNDERMINE LONGSTANDING MADE-INCANADA COPYRIGHT MODELS

In Canada, exceptions and limitations in theActdonot exist in a vacuum. The Act contains a set ofinterconnected provisions which operate together toachieve the policy objectives behind copyright. A shift tofair use could substantially undermine importantprovisions in theAct.

For example, collective administration of copyrighthas a long history in Canada and is essential forcompensating copyright holders for their creative effortsand investments. As Normand Tamaro observes:

Collective administration can serve to offsetthe difficulty of protecting copyright in aworld of ever-expanding means of communication. The copyright owner loses acertain amount of control over thecommunication of his work, but gains profits

through the increased collecting power of theassociations. More often than not, collectiveadministration is the only effective way toexploit ones copyright.1

At present, there are more than three-dozencollective societies operating in Canada. These entitiesbenefit consumers by providing an easy way for them toobtain access to works or other subject matter. Collectivelicensing also produces royalties for Canadian composers,authors, and other creators.2 However, royalties can only

3 Government Response to the Report of the Sub-Committee on the

Revision of Copyright, February 1986, at 12-13.1 Normand Tamaro, 2008 Annotated Copyright Act (Toronto, ON:Thomson Canada Limited, 2007) at 768.2 See, for example, Minister of Public Works and Government Services, The Canadian Music Industry: 2006 Economic Profile, online:Canadian Heritage Part III.
https://www.pch.gc.ca/pgm/fmusc-cmusf/pubs/prfl/104-eng.cfmhttps://www.pch.gc.ca/pgm/fmusc-cmusf/pubs/prfl/104-eng.cfm


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be imposed on activities for which a licence from acopyright holder is required. If an open-ended fair usesystem were established, it would undoubtedly be relied

upon by users to eliminate or reduce the scope ofroyalties that must be paid in private negotiations and inproceedings before the Copyright Board.3 It would makecollective licensing more difficult and expensive as userswould continually be able to raise new potential reasonsnot to pay based on the vague purpose of fair use.Further, licensing would become more difficult as usersand right holders would be uncertain about what iscovered by a collective licence.

The Act also contains specific exemptions thatreflect a delicate balance between the stakeholderinterests that could be adversely affected by fair use. For

example, the private copying regime provides a levy onaudio recording media to compensate rights holders inmusical works and sound recordings for the copying oftheir music onto such media.4 A levy is only exigible onuses of music that would otherwise constitute aninfringement and require a licence. A new fair useprovision could arguably exempt much of the copying forwhich royalties are currently paid to Canadian rightsholders.5

There have been many requests to expand the levyto include new media, such as DARs, and for new types of

3 In the Reprographic Reproductions (Educational Institutions 2005-09)(26 June, 2009), Copyright Board of Canada Decision, online: case, the Copyright Board refused to extend fairdealing for research to educational uses. This would certainly bechallenged if fair dealing were expanded.4 The courts have held that the levy was created to support creatorsand cultural industries by striking a balance between the rights ofcreators and those of users and to overcome difficulty in enforcingrights of reproduction connected to private use: Canadian PrivateCopying Collective v. Canadian Storage Media Alliance (2004), 36C.P.R. (4th) 289 (F.C.A.) at para. 51; Canadian Private CopyingCollective v. Cano Tech Inc., [2006] 3 F.C.R. 581 at paras. 4-6(F.C.T.D.).5 In promulgating the levy system in the 1997 copyright reforms, thegovernment recognized that one reason for instituting a levy was theinterrelationship between private copying and fair dealing, thusmeriting a levy to substitute for uncertain and wasteful litigation. before Senate Committee on CanadianHeritage on Bill C-32, Tuesday, June 18, 1996, at 1120-35.
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works.6 However, if fair use was introduced into theAct, itcould significantly reduce the need for an expandedprivate copying exception and undermine any prospect of

expanding the private copying regime.The Copyright Act contains many detailed

exceptions such as those for educational institutions,libraries, archives and individuals with perceptualdisabilities. Many new exceptions were also proposed inBill C-607 and Bill C-61.8 A new fair use provision could beinterpreted by the courts as an independent basis fordetermining acceptable uses in all of these contexts.9 Thiscould result in costly litigation to determine the scope ofpermissible uses in these important sectors. In thatsituation these vital policy considerations would bedetermined by the courts and not by Parliament.

Another potentially adverse effect of making awholesale change to the fair use system would be theuncertain effect on the vast number of contracts enteredinto between creators, rights holders and users respectingcopyright. As the Heritage Study noted, it is:

Thus important to assess how the role of contractis embedded in the Canadian Copyright Act andhow it is deployed in practice to promote andtemper the desired resultspresumably theobjectives of balance where the interests ofcreators, users, rights holders and the generalpublic are considered.10

6 For example, at the current Halifax roundtable, the Canadian PrivateCopying Collective, American Federation of Musicians, and ACTRAsought to expand the levy to other media and works. Halifax Round Table and Public Hearings on Copyright (10 August, 2009)


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Advocates of enacting a fair use model for Canadaassume that this model would privilege purely personaluses, and that this would be in the public interest.

However, privileging purely personal uses couldundermine the importance of the values currentlyprotected by fair dealing, values which serve a muchgreater public purpose than personal uses of copyrights.

There is a distinction between uses that serve a publicpurpose and purely personal uses. Certain exemptionsunder the current fair dealing law further the publicinterest in the dissemination of works, through criticism,review, research and private study. To the extent thatspecific exemptions are needed to deal with accessproblems resulting from digitization or the Internet, itwould be preferable to create specific exceptions to

address them rather than distorting fair dealing doctrinesto accommodate purely personal uses of copyrightmaterials.11

B. FAIR USE CANNOTBE TRANSPLANTEDINTO CANADA WITHOUTCREATING SIGNIFICANT UNCERTAINTY

Those who argue in favour of adopting fair useseem to assume that this system can effectively andeasily be transplanted into Canadian law. What they fail torecognize or address is that the doctrine was codified intoAmerican law after more than 150 years of judicial

interpretation that gave the doctrine meaning andboundaries.12 Adopting fair use into a legal system thatlacks this backdrop would result in confusion, andunpredictable applications, which would inhibit both usersand creators from understanding what is permissible, and

10 DAgostino, After CCH, supra note 40 at 7. Fair use is regarded asan affirmative defense under U.S. law which the putative infringer hasthe burden of carrying. Campbell v. Acuff-Rose Music Inc., 510 U.S. 569(1994). In CCH the Supreme Court called the fair dealing defence auser right.11 See Melissa de Zwart, Fair use? Fair dealing?, Faculty of Law,Monash University, Research Paper No. 2006/09, December 7, 2007 at32.12 The common-law doctrine of fair use in the United States isconsidered to originate inhttp://www.faculty.piercelaw.edu/redfield/library/Pdf/case-folsom.marsh.pdf 9 F.Cas. 342, an 1841 decision by Justice JosephStory. The doctrine as developed by the courts was codified in s. 107 ofthe 1976 revisions to the U.S. Copyright Code.
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what is not.13 A broad exception with unclear boundariescould also hamper effective enforcement againstinfringement, because violators would always attempt to

argue that their acts were fair.Moreover, Canadas copyright law is considerably

different from U.S copyright law.14 It is also based on adifferent constitutional footing,15 and operates within amuch different cultural setting. Canada has a hybrid, dual-language market that combines a common law copyrighttradition inherited from England with a droit dauteurcivillaw tradition inherited from France.16 Given all thesefactors, it is very uncertain that Canadian courts wouldsimply adopt all of the principles derived from the U.S.cases or that specific cases would be decided in the same

13Supra note 56, at 33. In commenting on a proposal to enact a fairuse regime in Australia, Zwart states: The adoption or application offair use laws without full consideration of what they bring to enhanceexisting Australian law is short-sighted. Copyright law is complicatedenough; it does not need to be complicated further by grafting on lawsfrom another copyright context. It is time to carefully consideramendments we actually need to our fair dealing law, especially inareas such as parody, to ensure that it continues to protect theinterests and values of copyright owners and users in the 21st

Century.14 See CCH, supra note 3 at para. 22, where the Supreme Court statedthat U.S. copyright cases may not be easily transferable to Canada

given the key differences in the copyright concepts in Canadian andAmerican copyright legislation.15 DAgostino, supra note 40, noting at 51 that even if Canada couldselectively incorporate U.S. precedents into a Canadian setting, thisapproach could not import constitutional values. Similarly, Burrell andColeman suggest at 269 that the fair use defence in the United Statesis closely bound up with constitutional guarantees of free speech,privacy, freedom from regulation, and free competition and that it isbeholden on us to think carefully about how a fair use defence wouldbe likely to operate in a legal environment in which the principles thatunderpin and reinforce the fair use defence in the United States do notenjoy the same prominence.16 See Thberge v. Galerie dArt du Petit Champlain inc., [2002] 2S.C.R. 336 at paras. 12-16, 63-64 (majority), 116 (dissent), discussingthe dual antecedents of Canadian copyright law. Also see InformationHighway Advisory Council, Copyright and the Information Highway(1994), at 26, where the Parliamentary Sub-Committee rejected theimportation of the U.S. fair use system in part because The CanadianAct is based on very different principles [than the U.S. Act]: therecognition of the property of authors in their creation and therecognition of works as an extension of the personality of theirauthors.
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way as they were in the U.S. In fact, there is good reasonto think they would be decided differently.17

Even if Canada was able to import all facets of the

U.S. system, without modification, scholars such asNimmer suggest that no clear direction would beascertainable from the U.S. example, with the statutoryfair use factors providing no correlation whatsoever withthe prospects of success in any given case.18

The Heritage Study enumerates the dangers ofsimply importing the fair use model to Canada withoutcontemplating the unanticipated effects that might ensue:

Some commentators have championed thatCanada adopt US fair use. This would entailcherry-picking from the US cadre of copyrightlaws and taking from it its fair use provision.

There are problems with this approach. First, asnoted from eminent US studies, fair use is illand not the panacea approach that many,perhaps in Canada, proclaim. Because fair use isill, it has by necessity engendered many fix-itapproaches, some by the courts themselvesattempting to impose bright-lines (egpresumptions on commercial uses) and byindustry players attempting to institute best

17Canada and the United States have already diverged on the fairness

factors. Compare, for example, CCH with the influential 2nd Circuit caseAmerican Geophysical Union v. Texaco Inc., 60 F.3d 913 (1994). In

American Geophysical, the majority considered the availability of alicence to be relevant in concluding that the photocopying by Texacoof eight articles was not fair. In CCH, the Supreme Court came to theexact opposite conclusion at para. 70. Canadian courts also diverged inthe weight assigned to the various fairness factors. Consider forexample, the weight to be given to the effect of the dealing on themarket for the work. In CCH, the Supreme Court said at para. 59 that"Although the effect of the dealing on the market of the copyrightowner is an important factor, it is neither the only factor nor the mostimportant factor that a court must consider in deciding if the dealing isfair." By contrast, in the case of Harper & Row, Publishers, Inc. v.Nation Enterprises, 471 U.S. 539 at 566 (1985), the U.S. SupremeCourt called this "the single most important element of fair use." Whileother courts have suggested that no one factor should enjoy primacy,they have still identified this factor as "important" in comparison to"the nature of the work" and "the amount and substantiality of theportion used":American Geophysical at para. 83.18 Nimmer, supra note 38 at 267-81, assessing the analysis of sixty fairuse cases from 1994 to 2002, finding no statistical correlations, andconcluding that the s. 107 statutory test succeeded only in injecting a high degree of subjectivity and imprecision into each factor andtheir cumulative application.
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practices. Second, cherry-picking a law, likelyalso means taking from its jurisprudence (andneglecting other constitutive factors, such as a

Constitution). Would Canadian courts apply USfair use cases? Would this application ignore thefact that property is not constitutionallyentrenched in Canada?19

C. THE PROPOSED REFORMS RISKVIOLATING CANADASINTERNATIONAL TREATY OBLIGATIONS

Independent from the policy considerations raisedin this paper, there is a risk that adopting a fair usesystem would violate Canadas obligation to enact itscopyright legislation in harmony with its internationaltreaty obligations.20 Under the three-step test imposed by

the Berne Convention and the TRIPS Agreement, Canadaagreed to confine limitations or exceptions to (i) certainspecial cases, (ii) that do not conflict with a normalexploitation of rights, or (iii) unreasonably prejudice thelegitimate interests of authors or right holders.21 Eachcondition of the three-step test must be given a distinctmeaning and treated as a separate and independentrequirement.22

19 DAgostino, After CCH supra note 40, at 40-41. Her view is echoedby Neil Netanel, who writes, a legal rule or doctrine often operatesquite differently, or carries very different symbolic content, whentransplanted from the source to the host jurisdiction. Even if a rule istransplanted word-for-word, it may effectively be modified insubstance or simply rendered irrelevant in the host country:Asserting Copyrights Democratic Principles in the Global Arena(1998) 51 Vanderbilt L. R. 217 at 274.20 Sam Ricketson and Jane Ginsburg, International Copyright andNeighbouring Rights: The Berne Convention and Beyond, Vol. I, 2d ed.(Oxford; New York: Oxford University Press, 2006) at para. 10.31-10.34; Mihly Ficsor, The Law ofCopyright and the Internet: The 1996WIPO Treaties, Their Interpretation and Implementation (Oxford; NewYork: Oxford University Press, 2002) at 3.16 [Ficsor]; Opinion of theCouncil of Copyright Experts, No. SzJSzT 17/06 of May 11, 2006(Hungary) [Hungarian Opinion], paras. 8-10; Remuneration of PrivateCopying in Australia [Aust. Report] at 570-71, 582; Barry Sookman,The SAC Proposal for the Monetization of the File Sharing of Music in

Canada (2008) 1 Osgoode Hall Rev. L. Poly 101 at 109-129[Sookman, SAC Proposal].21 Article 9(2) Berne Convention; Part II, Article 13 TRIPS; Ricketson,ibid., at paras. 13.11-13.25. Under NAFTA, Canada agreed to extendapplication of the three-step test to sound recordings.22

Report of the Panel on United States Section 110(5) of the USCopyright Act, (2000), WTO Doc. WT/DS160/ [WTO Decision], at para.
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The first step of the test requires that (a) the scopeof the exception must be known and particularized inorder to guarantee a sufficient degree of legal certainty;23

and (b) the exception or limitation must involve specialcircumstances.24 A WTO panel considering the legitimacyof a U.S. copyright provision concluded that this steprequires any exception or limitation to have a narrowscope as well as an exceptional or distinctive objective.25

The second step of the test requires that theexception or limitation not conflict with the normalexploitation of the work, including those forms ofexploitation which, with a certain degree of likelihood andplausibility, could acquire considerable economic orpractical importance.26

The final step of the test requires that theexception or limitation does not unreasonably prejudicethe legitimate interests of the author (Berne) or rightholder (TRIPS). The term legitimate interests isconsidered to encompass both economic and non-economic interests; the term unreasonably prejudice isthought to refer to disproportionate harm, damage orinjury to such interests.27

Many authorities have reviewed the fair use systemfor compliance with the three-step test and haveexpressed the opinion that it is non-compliant.28 Writing

6.97; Report of the Panel on Canada - Patent Protection ofPharmaceutical Products, (2000),WTO Doc. WT/DS114/R [WTO PatentDecision], at para 7, 7.21; Ficsor, supra note 65, at 91-92; WTODecision, para. 6.74; Martin Senftleben, Copyright, Limitations and theThree-Step Test (The Hague, New York: Kluwer Law International,2004) at para. 4.3; Ricketson, supra note 66, at paras. 13.11-13.25.23 WTO Decision, ibid., at para. 6.108.24Ibid., at para. 6.109.25Ibid., at para. 6.112.26Ibid., at para. 6.180; Ricketson, WIPO supra note 32 at 24.27Ricketson, "WIPO",ibid., at 27.28 See Herman C. Jehoram, Restrictions on Copyright and their Abuse(2005) 27 E.I.P.R. 359, stating at 360 that [t]he open American fairuse system in fact violates the Berne Convention with its specificrestrictions which serve to guarantee the rights of authors and theinterests of users by providing them with legal certainty, and Burrelland Coleman, supra note 40, at 270, citing numerous other studiesconcluding that the fair use regime is not TRIPS-compliant. Someacademics have taken a different view and express the opinion thatthe U.S. fair use system can be interpreted in such a way to be incompliance with the three-step test. See, for example Senftleben,supra note 68, at 162, arguing that the U.S. system is a special case,
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for the WIPO Standing Committee on Copyright andRelated Rights in 2003, the well-respected Australiancopyright scholar Sam Ricketson concluded that the

open-ended, formulaic provisions contained in s. 107 ofthe U.S. Copyright Actwere vulnerable to the three-steptest. While it was quite possible that any specific judicialapplication of Section 107 will comply with the three-steptest as a matter of fact, he concluded that:

The real problem, however, is with a provisionthat is framed in such a general and open-endedway. At the very least, it is suggested that thestatutory formulation here raises issues withrespect to unspecified purposes (the first step)and with respect to the legitimate interests of theauthor (third step).29

and Gerald Dworkin, Copyright, the Public Interest and Freedom ofSpeech in Jonathan Griffiths and Uma Suthersanen, eds., Copyrightand Free Speech: Comparative and International Analyses (Oxford;New York: Oxford University Press, 2005) at 162, suggesting that theUnited States also seems to believe that fair use and the three-steptest are compatible, but concluding that the issue will go to a WTOpanel. The question of whether the United States has ever tested itsfair use regime to Berne also remains a matter of debate. When theUnited States acceded to Berne in 1988, both the House and theSenate took the position that Berne was not self-executing, meaningthat the application of the treaty to the United States was limited tothat in the implementing legislation: U.S., House Statement on theBerne Convention Implementation Act of 1988, Congressional Record(Daily Ed.), October 12, 1988 at PAGE H10095. Respected scholars

have concluded that since none of the acts of legislation implementingBerne or TRIPS alters fair use, the United States may have relied on theinternational law principle to allow it to reserve matters relating to fairuse to the sovereign control of the United States. In the Americancontext, this option may have been the only feasible outcome to avoidthe chaos that would have resulted from a wholesale conversion of thefair use standard to a foreign model: Dan L. Burk, Julie E. Cohen, FairUse Infrastructures for Rights Management Systems (2001) 15Harvard Journal of Law & Technology 41 at 77; Burrell and Coleman,supra note 40, at 271, reviewing articles raising doubts about U.S.compliance with the three-step test but noting the realpolitik viewthat given US dominance in international copyright matters it is highlyunlikely that the Dispute Settlement Body of the WTO would everdeclare the US fair use provision to be incompatible with TRIPS.29 Ricketson, "WIPO", supra note 32, at 67-69. Although Ricketsonfocuses on the first and third steps, there remains an argument that s.107 of the U.S. Act violates the second step as well. If each step of thetest must be treated as a separate and independent requirement,language directing the courts to consider, among other factors, theeffect of the use upon the potential market for, or value of, thecopyrighted work, would seem to fall short of the internationalstandard, particularly since a review of the case law shows that court
http://ipmall.info/hosted_resources/lipa/copyrights/The%20House%20Statement%20on%20the%20Berne%20Convention%20Implementation.pdfhttp://ipmall.info/hosted_resources/lipa/copyrights/The%20House%20Statement%20on%20the%20Berne%20Convention%20Implementation.pdfhttp://jolt.law.harvard.edu/articles/pdf/v15/15HarvJLTech041.pdfhttp://jolt.law.harvard.edu/articles/pdf/v15/15HarvJLTech041.pdfhttp://ipmall.info/hosted_resources/lipa/copyrights/The%20House%20Statement%20on%20the%20Berne%20Convention%20Implementation.pdfhttp://ipmall.info/hosted_resources/lipa/copyrights/The%20House%20Statement%20on%20the%20Berne%20Convention%20Implementation.pdfhttp://jolt.law.harvard.edu/articles/pdf/v15/15HarvJLTech041.pdfhttp://jolt.law.harvard.edu/articles/pdf/v15/15HarvJLTech041.pdf


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As noted above, several governments includingAustralia, New Zealand and the UK have citedinternational treaty obligations as one of the reasons for

not adopting a fair use system.30Professor Daniel Gervais has suggested that the

CCH decision brings Canada dangerously close to aviolation of the TRIPs Agreement and its three-step testagainst which all copyright exceptions can now bemeasured.31 To rewrite ourActto expand it even furtherto include fair use could place Canada at a greater risk ofviolating these international obligations.

D.CANADA HASAND SHOULD CONTINUE ADDINGEXCEPTIONSTO ADDRESS SPECIFIC SPECIAL CIRCUMSTANCES

IN ACCORDANCEWITHTHE THREE-STEP TEST

In past consultation processes, Canada has takenthe path of adopting exceptions and other limitations tothe exclusive rights of copyright owners only where:

there is a demonstrated public policy need foraccess to copyright protected materials and themarket has not met or is unable to meet thatdemand; or

it would defeat an important public policy objectiveto require the user to obtain authorization prior to

use.32

findings on this factor correlated with the eventual result in only fiftypercent of cases. Nimmer, supra note 39, at 268, 280. Interestingly,even in the few cases in which all four factors appeared to line up inthe same direction, either fair or unfair, they still had no predictivevalue: 282-84.30 In its Explanatory Memorandum, supra note 2 at 7-8, Australia statedthat it is necessary that any amendments to the Act comply withinternational copyright treaties, including the three-step test. In 2008,the UK government declined a recommendation that it develop a fairuse model, stating as a rationale that We need to comply with theinternational legal framework: Taking Forward the Gowers Review,supra note 2, at 1, 6. Also see the New Zealand documents InternalWorking Paper supra note 2 at 61 and A Discussion Papersupra note25 at paras. 192-194, each discussing international obligations.31 Daniel Gervais, The Purpose of Copyright Law in Canada (2005)2:2 UOLTJ 315 at 322; DAgostino, After CCH supra note 40 noting at7 that should the courts apply CCH expansively, this may triggerinternational scrutiny of the legislation.
http://legislation.gov.au/ComLaw/Legislation/Bills1.nsf/0/D052936F5620B888CA25721000039385/$file/06157em.pdfhttp://www.ipo.gov.uk/consult-copyrightexceptions.pdfhttp://www.ipo.gov.uk/consult-copyrightexceptions.pdfhttp://www.med.govt.nz/templates/MultipageDocumentTOC____991.aspxhttp://www.rdtuo.ca/articles/vol2.2/2005.2.2.uoltj.Gervais.315-356.pdfhttp://www.canadianheritage.gc.ca/pc-ch/org/sectr/ac-ca/pda-cpb/publctn/cch-2007/CCH-2007-eng.pdfhttp://www.canadianheritage.gc.ca/pc-ch/org/sectr/ac-ca/pda-cpb/publctn/cch-2007/CCH-2007-eng.pdfhttp://www.canadianheritage.gc.ca/pc-ch/org/sectr/ac-ca/pda-cpb/publctn/cch-2007/CCH-2007-eng.pdfhttp://legislation.gov.au/ComLaw/Legislation/Bills1.nsf/0/D052936F5620B888CA25721000039385/$file/06157em.pdfhttp://www.ipo.gov.uk/consult-copyrightexceptions.pdfhttp://www.med.govt.nz/templates/MultipageDocumentTOC____991.aspxhttp://www.rdtuo.ca/articles/vol2.2/2005.2.2.uoltj.Gervais.315-356.pdfhttp://www.canadianheritage.gc.ca/pc-ch/org/sectr/ac-ca/pda-cpb/publctn/cch-2007/CCH-2007-eng.pdf


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While not all exceptions proposed in previouscopyright reforms have been perfect, the alternative ofleaving these policy decisions to individual litigants and

the courts would seem a far less effective, lessdemocratic and less principled way to approach copyrightreform. A fair use system would not permit policydecisions to be made in advance with appropriateconsultation. It is designed to create guidelines forbehaviour only after individual issues are tried in thecourts. Given the length of time it would take to achieve abody of law that is specific enough to guide the decisionsof users and right holders, it is questionable whether itcould offer any objective guidance. Further, the U.S.experience has shown that even decided cases are notnecessarily predictive of future outcomes, as facts specific

to new cases have often dictated inconsistent results.33

E.EFFECTSONTHE CANADIAN CULTURAL MARKETPLACE

In reform processes elsewhere, governments haverecognized the critical importance of designing acopyright system that takes into account the realities ofthe size and geographical or cultural isolation of theirmarketplace. For countries like Canada, which have arelatively small population, overbroad exceptions andlimitations can have adverse effects on the ability to earnadequate remuneration from creative endeavours.34 This

general concern is even further magnified for specific

32 Canadian studies that discuss these criteria include EconomicCouncil of Canada, Report on Intellectual and Industrial Property(1971)at 133; A.A. Keyes, C. Brunet, Copyright in Canada: Proposals for aRevision of the Law (Consumer and Corporate Affairs Canada, 1977) at

12-16, 144-46; Supra note 43, at 63-64.33 Nimmer, supra note 38.34Internal Working Papersupra note 2, at paras. 18, 248-49. This pointwas also made by the European Publishers Council in the 2008 EUGreen Paper process, supra note 30, with the EPC warning thatoverbroad exceptions would lead to ever weaker offerings of versatilegood quality content.
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cultural marketplaces such as the Province of Quebec,35

First Nations and Mtis communities.

5. CONCLUSION

In the governments call for submissions in thecurrent copyright consultations, it stressed four majorthemes by which any future law would be measured. First,based on Canadian values and interests, copyrightchanges should be made in order to withstand the test oftime. Second, our copyright framework needs to beupdated to foster and take advantage of themultiplication of digital platforms, which has opened newmarkets, enabled new business models, and created new

opportunities. Third, the new framework must strengthenCanadas global competitive position and allow us toattract investments and high-paying jobs to Canada. Last,any changes must best position Canada as a leader in theglobal, digital economy.1 The government has alsostressed the need for amendments to copyright to bebased on international standards and norms and clear,predictable and fair rules to support creativity andinnovation. 2

Adopting fair use or an expanded fair dealing modelwould be a transposition of a foreign doctrine into ourCanadian legal system, despite the fact that our legal

system lacks the institutional arrangements necessary forthis doctrine. It could, in fact, undermine the Canadianvalues and interests already reflected in the Acts many

35 As Christopher M. Jones notes in Quebec Song: Strategies in theCultural Marketplace (2001) 31 Quebec Studies 50, The lack ofpenetration in the French market is due to a variety of factors. Thesimplest to identify is the high cost of breaking an artist on foreignsoil (i.e. attaining a market presence which becomes financially self-sustaining in that territory). These costs include transportation,technical tour support and promotional expense if touring artists are tohave any impact, as well as promotion of recordings for radio play, andin-store sales promotion. The limited size of the Quebec market doesnot allow for any but the brightest stars to accumulate the necessary

war chests on their own.1 Consultation Questions, Online: Copyright Consultations .2 Canada, Reforming the Copyright Act Backgrounder CopyrightReform Process 2008 (June 2008); Preamble to Bill C-61 to adoptcoordinated approaches to copyright protection based oninternationally recognized norms.
http://ml.hss.cmu.edu/facpages/cjones/QuebecSong2.pdfhttp://ml.hss.cmu.edu/facpages/cjones/QuebecSong2.pdfhttp://copyright.econsultation.ca/http://www.ic.gc.ca/eic/site/crp-prda.nsf/eng/h_rp01151.htmlhttp://www2.parl.gc.ca/HousePublications/Publication.aspx?Docid=3570473&file=4http://ml.hss.cmu.edu/facpages/cjones/QuebecSong2.pdfhttp://ml.hss.cmu.edu/facpages/cjones/QuebecSong2.pdfhttp://copyright.econsultation.ca/http://www.ic.gc.ca/eic/site/crp-prda.nsf/eng/h_rp01151.htmlhttp://www2.parl.gc.ca/HousePublications/Publication.aspx?Docid=3570473&file=4


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exceptions and specific statutory regimes. There is alsono reason to think that adopting a fair use system wouldenable the difficult task of recalibrating copyright law to

adapt to ever changing technologies in order to withstandthe test of time.3

Our copyright framework needs to be updated totake advantage of new markets and new opportunities ina way that strengthens Canadas global competitiveposition, that allows Canada to attract investments, andthat positions Canada as a leader in the world-wide digitaleconomy. However, fair use would not accomplish theseobjectives.

Fair use has been rejected by almost all our tradingpartners. The U.S. is the sole exception to this, where the

doctrine was given a special status and meaning upon itsadoption. Our trading partners rejected the doctrine forgood reasons, and these reasons went well beyond thelegitimate concern that fair use is not compliant with thethree-step-test. Its enactment in Canada would result inunclear and unpredictable protection for creative productsthat would discourage investment. All stakeholders wouldbe compelled to spend considerable money to clarify whatis legal and what is not. Fair use would undermine presentand future revenue streams including revenuesassociated with collective licensing and private copyinglevies;all at a time when our creative industries need help

the most.If new exceptions and limitations are warranted,Canada should take the road chosen overwhelminglythroughout the world. It should make a careful, focussedstudy of the needs of Canadians for access to works thatthe market has not met or is unable to meet and decideon the best policy vehicles for meeting those needs.Where required, new exceptions should be based on thethree-step test mandated by the treaties and conventionsCanada has agreed to honour.

For all of the above reasons, Canada should notadopt a fair use model.

3Supra note 57, at 33 arguing that fair use does not accommodate newtechnology any better than fair dealing in terms of balancing therights, of owners and users.


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Appendix A Supporting Organizations

Access Copyright, The Canadian Copyright Licensing Agency -www.accesscopyright.calAssociation qubcoise de l'industrie du disque, du spectacleet de la vido (ADISQ) - www.adisq.comAmerican Federation of Musicians (AFM) -www.afm.orgARTISTI (Socit de gestion de lUnion des Artistes) -www.uniondesartistes.com/index_artisti.aspxAssociation des journalistes indpendants du Qubec -www.ajiq.qc.caAssociation des professionnels des arts de la scne du Qubec(APASQ) www.apasq.orgAssociation of Canadian Publishers (ACP) - www.publishers.ca

Association of Canadian University Presses (ACUP) -www.acup.caBook Publishers Association of Alberta (BPAA) -www.bookpublishers.ab.caCanadian Actors' Equity Association (CAEA) -www.caea.comCanadian Artists Representation (CARFAC) -www.carfac.caCanadian Artists Representation CopyrightCollective (CARCC) www.carcc.caCanadian Association of Photographers and Illustrators inCommunications (CAPIC) - www.capic.orgCanadian Authors Association (CAA) - www.canauthors.orgCanadian Copyright Institute www.canadiancopyrightinstitute.ca

Canadian Educational Resources Council (CERC) - www.cerc-ca.orgCanadian Freelance Union (CFU) - www.cfunion.caCanadian Music Centre (CMC) - www.musiccentre.caCanadian Music Publishers Association (CMPA) -www.musicpublishercanada.ca
http://www.accesscopyright.ca/http://www.adisq.com/http://www.afm.org/http://www.afm.org/http://opt/scribd/conversion/tmp/scratch4/www.uniondesartistes.com/index_artisti.aspxhttp://www.ajiq.qc.ca/http://www.apasq.org/http://www.publishers.ca/http://www.acup.ca/http://www.bookpublishers.ab.ca/http://../Local%20Settings/Temp/::/ODMA/:PCDOCS/DOCS/647261/17www.caea.comhttp://../Local%20Settings/Temp/::/ODMA/:PCDOCS/DOCS/647261/17www.caea.comhttp://www.carfac.ca/http://www.carfac.ca/http://www.carcc.ca/http://www.capic.org/http://www.canauthors.org/http://www.canadiancopyrightinstitute.ca/http://www.cerc-ca.org/http://www.cerc-ca.org/http://www.cfunion.ca/http://www.musiccentre.ca/http://www.musicpublishercanada.ca/http://www.accesscopyright.ca/http://www.adisq.com/http://www.afm.org/http://opt/scribd/conversion/tmp/scratch4/www.uniondesartistes.com/index_artisti.aspxhttp://www.ajiq.qc.ca/http://www.apasq.org/http://www.publishers.ca/http://www.acup.ca/http://www.bookpublishers.ab.ca/http://../Local%20Settings/Temp/::/ODMA/:PCDOCS/DOCS/647261/17www.caea.comhttp://www.carfac.ca/http://www.carcc.ca/http://www.capic.org/http://www.canauthors.org/http://www.canadiancopyrightinstitute.ca/http://www.cerc-ca.org/http://www.cerc-ca.org/http://www.cfunion.ca/http://www.musiccentre.ca/http://www.musicpublishercanada.ca/


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Canadian Photographers CoalitionCanadian Publishers Council (CPC) - www.pubcouncil.caCanadian Private Copying Collective (CPCC) -www.cpcc.ca

Canadian Society of Children's Authors, Illustrators andPerformers (CANSCAIP) - www.canscaip.orgCrime Writers of Canada (CWC) - www.crimewriterscanada.comDirectors Guild of Canada (DGC) - www.dgc.caFederation of BC Writers www.bcwriters.comGuild of Canadian Film Composers (GCFC) - www.gcfc.caLUnion des artistes - www.uniondesartistes.comLUnion des crivaines et crivains qubcois (UNEQ) -www.uneq.qc.caLa Societe Professionelle des auteurs et descompositeurs du Quebec (CPACQ)Le Centre de musique canadienne au Qubec -www.cmcquebec.ca

Magazines Canada - www.cmpa.caNeighbouring Rights Collective of Canada (NRCC) - www.nrcc.caOrganization of Book Publishers of Ontario (OBPO) -www.ontariobooks.caPlaywrights Guild of Canada - www.playwrightsguild.caProfessional Photographers of Canada - www.ppoc.caProfessional Writers Association of Canada (PWAC) -www.pwac.caRegroupement des artistes en arts visuels du Qubec (RAAV) -www.raav.orgSaskatchewan Publishers Group http://www.saskpublishers.sk.caSaskatchewan Writers Guild (SWG) -www.skwriter.comSociety of Composers, Authors and Music Publishers of Canada(SOCAN) - www.socan.caSocit des Auteurs de Radio, Tlvision et Cinma (SARTEC) -www.sartec.qc.caSocit de dveloppement des priodiques culturels qubcois(SODEP) - www.sodep.qc.caSocit qubcoise de gestion collective des droits dereproduction (Copibec)www.copibec.qc.caSociety for Reproduction Rights of Authors, Composers andPublishers in Canada (SODRAC) - www.sodrac.caSocit de gestion collective des droits des producteurs dephonogrammes et de vidogrammes du Qubec (SOPROQ) -www.soproq.orgSongwriters Association of Canada (SAC) - www.songwriters.ca

The Creators Copyright Coalition www.creatorscopyright.caThe Writers Union of Canada (TWUC) - www.writersunion.caWriters' Federation of Nova Scotia - www.writers.ns.caWriters Guild of Canada - www.writersguildofcanada.com
http://www.pubcouncil.ca/http://www.cpcc.ca/http://www.cpcc.ca/http://www.canscaip.org/http://www.crimewriterscanada.com/http://www.dgc.ca/http://www.bcwriters.com/http://www.gcfc.ca/http://www.uniondesartistes.com/http://www.uneq.qc.ca/http://www.cmcquebec.ca/http://www.cmpa.ca/http://www.nrcc.ca/http://www.ontariobooks.ca/http://www.playwrightsguild.ca/http://www.ppoc.ca/http://www.pwac.ca/ht

Documents

Why Canada should not adopt fair use