Debunking the Fair Use vs. Fair Dealing Myth: Have We Had Fair Use All Along?

According to conventional wisdom, a fundamental difference exists between the American fair use doctrine and the Canadian (or Commonwealth) fair dealing doctrine: while American fair use can apply potentially to any purpose, Canadian fair dealing could only apply to those purposes enumerated in the statute. Accordingly, fair dealing cannot apply to dealings for other purposes even if they would otherwise be fair. This conventional wisdom is false. When the UK Parliament codified the doctrine of fair use a century ago and enacted the fair dealing provision, it had no intention to restrict or limit its application, adaptation and adjustment by the courts. The UK Parliament (and that of Canada ten years later) sought to codify a principle, an open, flexible, and general standard, not precise rules, and had no intention to prevent its application to purposes beyond those specifically mentioned in the statute. Unfortunately, the English courts, in a series of early post-codification failed to recognize this point have sentenced fair dealing to a hundred years of stagnation. Fortunately, at the turn of the twenty-first century the Supreme Court of Canada declined to follow that restrictive path. The Canadian Parliament's decision to explicitly recognize additional purposes in 2012 and add other specific exceptions moves Canadian law in the same direction. The Court's rulings and Parliament's action have entrenched fair dealing and provided a necessary correction that allows fair dealing to resume the role it was always supposed to play. However, if conventional wisdom is correct, some uses, present or future, are still categorically excluded. This is not a recipe for progress. In a legal environment that outlaws novel ways of using, reusing and disseminating works outright, fewer new forms of expression will emerge. Fortunately, there is no serious indication that this is what Parliament intended when it legislated fair dealing, and there are very good reasons to challenge the view that it did have such intentions. This chapter, adapted from an earlier piece written in 2013, explains why and includes additional evidence to that discussed in the earlier piece. It debunks the Fair Use vs. Fair Dealing Myth and shows that an open, flexible, and general fair dealing is already here. It always has been.

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