https://www.jdsupra.com/legalnews/copyright-infringement-showdown-the-4536885/
Hey everyone.
Found this interesting article discussing fair use in the United States and how the doctrine has been used over time. I think it is interesting to compare this with our “fair dealing doctrine”. Although both are meant to achieve a somewhat similar purpose, there are several differences. The four factors of fair use are:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
As you can see there is a lot of overlap between our doctrine and that of the United States. Interesting to note however, there is no explicit factor dealing with alternatives to the dealing (or, use). I wonder if this factor is every really determinative in Canadian law, I cannot recall an example of this. Interesting to ponder if “alternatives to the dealing” should really be a factor in the test.
Let me know what you think regarding the differences in the test, do you think they are essentially the same, or is there any differences you think may change the outcome of some Canadian cases.
Communications Law
I don’t believe that this particular factor, alternatives to the dealing, will ever be determinative on its own. I did a quick CanLII search and found that in many cases, this factor is mentioned when the judge sets out the list of factors, but then the explanation on this factor is either not present or limited to a paragraph or two.
That being said, that the list of factors is already said to be NOT exclusive. So other than reducing the amount of ink that needs to be spilled on headings, I don’t see why taking it out of the list would be particularly helpful either. Arguably, this factor is simply a more explicit way of giving meaning to the “amount of the dealing” factor: it may be said to be fair to copy more in quantity, if there is no alternative to doing so.
The excerpt below I believe shows how closely these two areas of analysis are interlinked.
2018 FCA 222 at para 169, assessing under the heading of “Alternatives” to the copyright infringement of Knight Co by seeking to reproduce and sell identical copies of the CSA Electrical Code for 1/3rd of the price:
“There is no evidence that there exists a non-copyrighted alternative to the CSA Electrical Code, but it is hard to see how copying the entire Code was reasonably necessary to achieve users’ ends in consulting the Code for the purposes of research, private study or education. This factor likewise points to the dealing’s not being fair.”