Equitable use in Canada

To the Canada, the equitable use of protected works is presented like a series of exceptions to the violations of the Royalty , appearing in articles 29 and following of the Loi on the royalty ( Copyright Act ). These exceptions are, initially, of general interest. Additional exceptions are addressed thereafter to very specific actors and situations. The english language version of the law uses the term Fair Dealing .

Exceptions of general interest

The exceptions of general interest appear in articles 29 to 29.2 of the Law. They make it possible to use a protected work for purposes of private study and research (article 29), criticism and report (article 29.1) or for purposes of communication of the news (article 29.2) without making a violation of the Royalty.

On the other hand, the reproduction for purposes of criticism, report or diffusion of news will be equitable provided that is mentioned:

a) on the one hand, the source;
b) in addition, if this information appears in the source:

(I) in the case of a work, the name of the author,
(II) in the case of a service, the name of artist-interprets,
(III) in the case of a sound recording, the name of the producer,
(iv) in the case of a signal of communication, the name of the broadcaster.

Only general exceptions Ci-high appear under the equitable subtitle Utilization . However, the logic of exception continues in the following articles.

Other cases of not-violation

The Loi on the royalty also envisages, with articles 29.4 to 30.9, a series of exceptions making it possible certain actors to use protected works in particular circumstances. These exceptions do not appear under the equitable subtitle Utilization but constitute nevertheless a logical extension of it. The targeted actors are:

educational establishments (with regard to the representations of works at teaching ends, the reproduction of emissions of current events, the reproduction);
libraries, museums or services of files (with regard to the management and conservation of collections and the reproduction of articles of periodicals);
private individuals (with regard to the backup copies of computer programs);
people having perceptuelles deficiencies (in order to allow them the reproduction of a work on another support more adapted);
companies of broadcasting and programming (in order to allow them the reproduction of works or services within the framework of their marketing activities).

It should be noted that some of these acts “should not be accomplished in the intention to make a profit” (Article 29.3). Lastly, other situations are expressly catalogued like not constituting violations. It is the case in particular of the communication of documents carried out under the terms of the Loi on the access to information and of the Loi on the protection of the personal informations .

Particular aspects

The short quotation

According to the document written by Me Catherine Bergeron, lawyer with the cabinet Leger Robic Richard, lawyers and entitled” Canadian “ “FAIR DEALING FAIR USES” American: an analysis of the equitable use as regards royalty , one can read:

The parody

According to Me Bergeron (ibid), the Parodie constitutes a particular case in Canada. Indeed, the Canadian law envisages an exhaustive list of the exceptions falling under the blow from the equitable use and it is by no means mention of a right of parody. Whereas the parody is the subject of an explicit mention in the French or Belgian law, the Canadian law is dumb on the subject.

To the the United States, jurisprudence compares the Parodie to criticism, and the vague and not-exhaustive character of the doctrines of the Fair uses made it possible the Supreme court to declare that the parody is a use covered by the doctrines of the Fair uses. In Federal court of Canada, in the cause General Company of the Michelin-Michelin Establishments & Co (applicant) C. National union of the car, of aerospace, transport and other workers and workers of Canada (TCA-Canada) (1997), Teitelbaum judge refused to cross this step. Consequently, in Canada, any parody can be regarded as a violation of the royalty.

Reform process of the Law on the royalty

In Canada, the concept of Copyright made its appearance in 1924, in a law copied on the British Copyright Act of 1911. The first significant modifications with the Canadian legislation were made only starting from 1988. The first of two great stages of reform (the Phase I ) supported the holders of royalties, from the multiplication of the management companies formerly confined in the musical field. Thus the systematic collection of royalties started with Cancopy (now Access Copyright) and Copibec, in all the educational establishment offering the access to the Photocopieur, notwithstanding the fact that most of the copies carried out are it in accordance with the general provisions of equitable use allowing the reproduction of works at ends of research or private study, without payment of royalties.

In 1997, the government deposited a series of amendments entitled Phase II (C-32 Bill). The major innovation was the introduction of new exceptions intended specifically for the non-profit-making educational establishments, the libraries, the services of files and the museums. However the almost simultaneous growth of the Web and digital technologies, as well as the multiplication of the authors publishing under digital form in the Cyberspace, quickly made obsolete certain passages of the Law. For example:

29.4 (1) does not constitute a violation of the royalty does it, for an educational establishment or a person acting under the authority of this one, at teaching ends and in the buildings of the establishment:

a) to make a handwritten reproduction of a work on a table, a block of conference or another similar surface intended to receive handwritten inscriptions;
b) to reproduce a work to project an image of the reproduction by means of an overhead projector or a similar device.

The choice to name certain technologies rather than others returns the Loi on the royalty passably out of phase compared to a reality very changing. Besides the impact of this kind of more or less clear exception on the educational establishments and the success of their mission, in particular with regard to the use of the Technologies the information and the development of remote teaching, is the subject of a great debate in the English Canadian legal mediums.

A new reform process was launched in 2001 by the ministries for Industry and the Canadian Inheritance, which carried out the Standing Committee of the Canadian Inheritance to undertake the lawful examination of the Law in 2003. The C-60 Bill, which aimed at modernizing the Loi on the royalty , introduced many additional exceptions adapted to the numerical context, at the price however of a complexity even larger. This bill however was abandoned during the dissolution of the Parlement having preceded the Canadian Federal election by 2006.

New lighting brought by the judgment Canadian CCH Ltée C. Barreau of High-Canada

To paragraph 48 of Canadian stop CCH Ltée C. Barreau of High-Canada, returned in 2004, the Supreme court of Canada the Court brings precise details to the concept by this general observation, which implies that the equitable use is not only one simple means of defense or a violation which one tolerates, but well a right of the users to whole share:

(Original English Quotation, official translation of the Supreme court.)

Once this made observation, the Supreme court of Canada proposes, in paragraphs 53 to 60, six criteria to evaluate the equitable use. (The summary below is a translation carried out starting from the page in: to fair uses)

the goal of the use: Is it for research, the private study, criticism, a review or a report of topicality? The Court stresses that these objectives which opens the door with the equitable use should not be interpreted restrictivement because that could result an excessive restriction ( undue ) from the rights of the user.
the nature of the use: How is the use made? Is this a single copy or is there several copies? Will these copies be distributed to any wind or handing-over with a restricted group of anybody. Were the copies destroyed after their use? Which are the practices of use in the medium?
extent of the use: Which percentage of original work was used? To use a negligible portion is enough to qualify that of equitable use but there exist circumstances where it is necessary to quote or copy a work in entirety.
Alternatives with the use: Does there exist an alternative not subjected to the royalty? Can the object of a criticism be criticized without it being necessary to proceed to a copy?
the nature of work : The copy of a work which published forever can be more equitable only the copy of a work having already been the subject of a " publication; owing to the fact that its reproduction accompanied by an indication of the source will be able to lead to a broader diffusion of work in question, which is one of the objectives of the mode of royalty. On the other hand, if work in question were confidential, the balance will be able to lean in favor of the inequitable character of the utilization".
the effect of the use on work : Does the use of a copy of work affect the market of original work? " The competition which the reproduction is likely to exert on the market of original work can let believe that the use is not equitable. Even if the effect of the use on the market is a big factor, it is neither only nor more the important." An opinion with the effect which the use is an infringement is not sufficient but its existence will have to often be proven.

" These factors can be more or less relevant according to the factual context of the pled violation of the royalty. In certain cases, other factors that those enumerated can help the court to rule on the equitable character of the utilization."

Let us note that in this judgment, the Court ruled that the copy made under the mode of the equitable use could be made with a lucrative aim. The cause implied the library of Bareau of High-Canada. In its judgment, the Court says explicitly that a lawyer who would use photocopies of documents present in the library of the Bar in order to prepare a pleading, to pack a file and to even establish his invoicing did not violate necessarily the Law, because this use, very lucrative for him, fell precisely into the terms covered by the concept of use equitable.

External bonds

CCH Ltée C. Barreau of High-Canada, Judgment of the Supreme court of Canada (2004 CSC 13).
Canadian Law on the royalty. L.R. 1985, C.C-42.
Me Catherine Bergeron, Canadian '' “FAIR DEALING” and “FAIR USES” American: an analysis of the equitable exception of use as regards royalty ''.
Michael Geist (to dir.), '' In the Public Interest: Future The off Canadian Copyright Law '', Toronto: Irwin Law, 2005 (work published in English under Creative license Commons).
Michael Geist, the crisis of the royalty to Canada.
Office of the intellectual property of Canada.

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