As Meera Nair noted last week, today marks the tenth anniversary the Supreme Court of Canada’s landmark CCH Canadian v. Law Society of Upper Canada. A decade after its release, the case has grown in stature as the leading the users’ rights copyright decision by a high court in the world. Writing for a unanimous court, Chief Justice McLachlin stated:
the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively. As Professor Vaver, supra, has explained, at p. 171: ‘User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.’
The articulation of fair dealing as a users’ right represented a remarkable shift, emphasizing the need for a copyright balance between the rights of creators and the rights of users. While this approach unquestionably strengthened fair dealing, the immediate reaction to the CCH was somewhat mixed.
The academic community responded with articles by professors such as Craig, Drassinower and countless others that focused on the important change in copyright. More common were arguments that users’ rights was simply a metaphor and that little had changed. For example, Access Copyright’s responded publicly that “this ruling does not change the fact that most copying of copyright protected works does not fall under fair dealing. The Supreme Court stated definitively that copyright does exist in original works, and that is why organizations must sign an Access Copyright licence or risk breaking the law.” Incredibly, many educational institutions were similarly skeptical about the decision. In the months after the decision, few adjusted their policies and even the Council of Ministers of Education, Canada suggested in 2008 that more clarity on fair dealing was needed.
Five years after the decision, some groups began to work to roll back the CCH decision. In 2009, Access Copyright urged the government to establish limits on the ruling in its submission to the national copyright consultation:
Rather than an expansion of fair dealing, Access Copyright believes that it may be necessary to qualify the fair dealing provision as set out by the Supreme Court of Canada in the CCH decision, in order to ensure that Canada is compliant with the three-step test. Access Copyright contends that the fair dealing provision as interpreted by the Supreme Court of Canada conflicts with the normal exploitation of a work and causes an unreasonable loss of income to creators and publishers.
The government rejected the calls to limit fair dealing, however, instead expanding the provision with several new purposes including education, parody, and satire in its 2010 copyright reform bill.
With the government siding with users on the issue, the same groups hoped the Supreme Court of Canada would rethink its CCH ruling in the 2012 copyright cases. The Canadian Publishers’ Council argued that the meaning of “users’ rights” was overstated:
The Appellants and other Intervenors rely extensively on the concept of “users’ rights” to promote a view of fair dealing that would substantially curtail copyright holders’ rights and permit extensive copying of behalf of others. Their use of the term to justify this severe curtailment of exclusive rights illustrates the dangers of treating the word ‘user rights’ literally, rather than as a metaphor to express the importance of user interests.
Access Copyright emphasized the same concern:
In CCH this Court raised expectations when it held that fair dealing is a “user’s right”. Those raised expectations have led users like the appellants to ask that the right be clarified and made more predictable. However, this should not come at the expense of upsetting the balance between users’ and creators’ rights under the Act.
Yet the Supreme Court of Canada rejected those arguments, choosing instead in 2012 to re-affirm the importance of users’ rights:
CCH confirmed that users’ rights are an essential part of furthering the public interest objectives of the Copyright Act. One of the tools employed to achieve the proper balance between protection and access in the Act is the concept of fair dealing, which allows users to engage in some activities that might otherwise amount to copyright infringement. In order to maintain the proper balance between these interests, the fair dealing provision ‘must not be interpreted restrictively’.
While some groups still seek to downplay the importance of fair dealing, ten years after CCH it is clear that users’ rights are here to stay. The Supreme Court has continued its emphasis on a copyright balance that prominently features users’ rights, the government has adopted copyright reform with a significant user-oriented component (expanded fair dealing, user generated content provision, Internet exceptions, format shifting, device shifting, backup copies), and the World Intellectual Property Organization reached agreement on its first users’ rights copyright treaty last year with the Marrakesh Treaty for the blind and visually impaired. There is still much work to be done, but the progress over the past decade owes a great deal to the battle between legal publishers and the Law Society of Upper Canada that culminated in the March 4, 2004 CCH decision that firmly placed copyright users’ rights on the map.