User Rights Then and Now

As delivered by David Vaver CM FRSC
Emeritus Professor of IP & IT Law, University of Oxford Emeritus Professor of IP Law, Osgoode Hall Law School, York University

Thank you for inviting me to talk at your Fair Dealing Week.[1] It is interesting that a subject which just took 18 words to describe in Canada's Copyright Act in 1924 should, a century later, have become one that takes a week to talk about; but so it often is with a few short words found in legislation. The right to freedom of expression that appears in the Canadian Charter of Rights and Freedoms takes just 24 words to express but it too has generated discussions out of all proportion to the sybilline language in which that freedom is expressed. Fair dealing now runs into 3 short sections of the Copyright Act but there are, of course, other much more elaborately expressed user rights that occupy a sizable chunk of the Act, including those dealing with the activities of today's educational institutions, libraries, archives, and museums.

User rights talk has been common currency in Canada for the last couple of decades and is becoming more so internationally. I propose today to talk about how and why such rights arose and some future challenges to them. Some matters are being covered more fully by other presentations; and some of what I say may be old hat to some of you, but I hope not to all, and I do hope to provide the ancient headgear with the occasional new feather.

First, what are User Rights? Broadly speaking, they are the rights that anyone has to use a copyright-protected work or performance without interference from the copyright owner. Elsewhere this ability is called an “Exception or Limitation” to copyright: indeed the rights appear in our Act under the heading of "Exceptions." But Shakespeare notwithstanding, a rose by any other name does not necessarily smell as sweet, and so it is with our subject. An exception to copyright is not the same as a right to use a copyright-protected work.

Fair dealing is the most discussed User Right because it cuts across all of copyright and sets the tone for the way the other rights are interpreted. It reflects a norm commonly expected of all human social interaction: do unto others as you would have them do unto yourself. Fair dealing and the other user rights represent copyright's Golden Rule.

In the initial Copyright Act of 1924, fair dealing stood at the head of 5 user rights, all of which are still with us a century later. It continues to occupy the same pride of place because it applies not just to literary work, music, art, drama, and movies, but also to what the Act calls the "other subject-matter" of copyright: sound recordings, broadcasts, and performers’ rights. It overlays the specific user rights the Act details: the rights of non-profit educational institutions to serve their faculty and students and of libraries and archives to serve their patrons, as well as other rights: access rights for people who cannot see or hear well, or at all; for charities to further their aims; for places of worship to use music in their services; and so on. Some activities that these specific user rights do not catch may yet qualify as fair dealing or may be otherwise justifiable in the public interest (a subject that I'll mention a bit more fully later). Fair dealing and the public interest defence function as a sort of back-stop.

In the spirit of your Week, I shall concentrate on the user right of fair dealing — utilisation équitable in the French version of our Act.

The provision on fair dealing came into our law and the laws of most countries of the then British Empire from the 1911 UK Copyright Act, although the right has been much tinkered with since. The US has its counterpart -- “fair use” -- which is like "fair dealing" in some ways and not in others. For example, the US Copyright Act sets out what factors to consider when deciding whether a use is fair. Canada’s Act does not do that but our Supreme Court has given guidance on what dealings are "fair" along similar lines to the US law.[2] But fair dealing in Canada is allowed only for 8 purposes: research, private study, parody, satire, education, criticism, review, and news reporting; while in the US a use for any purpose may qualify. Canada also has an "attribution tripwire:" if you copy something for the purpose of criticism, review, or news reporting, you must acknowledge your source; otherwise the dealing will categorically not be fair.[3] Not so in the US.

What is legal in one jurisdiction is quite often not so elsewhere. Take the case decided a few years ago where Canadian courts said that the unauthorized copying and sale by an Alberta-based company of a code of electrical standards produced by the Canadian Standards Association (CSA) was not a fair dealing because the whole code had been copied and was being sold at a lower price in competition with the CSA product; and so the company was infringing the CSA's Canadian copyright.[4] The company responded by moving its business to Texas and selling online from there. The CSA lost its bid to close down the American operation. One judge on the US appeals court deciding the case said that the company's use was not fair under US copyright law for much the same reasons fair dealing failed in Canada. But the majority of the court did not consider fair use at all and said instead that a code that was incorporated into law, as the CSA's code had been throughout Canada, was effectively legislation, and legislation was free for all to use under US law even where it emanated from a foreign country and was protected there.[5] Last time I looked, the site continues its marketing from Texas, accompanied by a back story of how a little guy from Alberta triumphed over bullies from the Canadian civil service.

Let me return to the issue of nomenclature: the treatment of Fair Dealing and other facilities to use copyright-protected material as User Rights. The word “right” here is used in its common meaning of “entitlement”, like the right to vote. Why does calling these things User Rights rather than “Exceptions and Limitations” matter? Why fight over a label? Because words matter, and nowhere more than in law. They orient how courts, lawyers, and the public think about a subject.

Those who talk of “exceptions” rather than “rights” are really claiming that copyright’s natural order is one where all uses are or should be within the copyright holder’s control, and that any departure from that position is exceptional: an abnormality or aberration. From there, it is a short step to call copyright “property” just like land and goods are, and to say that anyone doing anything a copyright owner doesn’t like is “taking” their property. Maybe the taking is not unconstitutional but it at least should be considered exceptional: to be closely "cabined, cribbed, confined" and interpreted as narrowly and grudgingly as possible.

Copyright can be analogized to land in some senses: you can sell or license it or bequeath it in your will. In other ways the analogy falls apart: how can you be tossed off a copyright, the way you can be tossed off land? If I dig up and carry off your rose garden and throw it in the sea, it’s gone: you don’t have it any more. Copyright has no equivalent: if I infringe your copyright, you still have the right; and my infringement may even make it more valuable.

The fact is that copyright is a social institution, not a natural right. It needed Parliament to pass legislation to create it, and the content of that statute has changed radically over time as technology and society have changed. What the English Parliament passed in 1710 as the first copyright law, dealing with the printing press, does not look anything like the copyright law sitting on any country's statute book today in the age of electronics. Before copyright came along, people could do whatever they wished with published work: copyright was a fetter. It was the exception, and freedom from it was the rule.

That was how copyright looked up to the early 20th century. Users had plenty of rights because copyright owners had so few. In those simpler times, when tableaux vivants were a common form of entertainment at fairs and exhibitions, I could stage a tableau vivant of Manet’s painting A Bar at the Folies Bergères without bothering to ask Manet or pay him a sou. Charles Dickens could stop Great Expectations being staged as a play only by himself simultaneously publishing a stage version of it. Otherwise he had no expectation -- great or small - of stopping anyone else from putting on the work as a play or getting royalties from the performance; for 19th century laws did not give novelists the exclusive right to dramatize their work.

Not only did owners have few exclusive rights but judges interpreted them to say that there was nothing wrong in using work in ways that were not unfair. What was fair was a value judgment that depended on not just how much and what was taken, but why it was taken and what additional value arose from the taking. So abridgments, criticism, and even translations were allowed because the abridger, critic, or translator had given society something new and valuable that didn't exist before. In one striking English case at the end of the 18th century,[6] a mapmaker had produced a nautical chart of the east coast of North America, running south from the Strait of Belle Isle between Newfoundland and Labrador. He had done so by copying and consolidating 4 charts made by another cartographer, who then proceeded to sue him for infringement. But at the trial the second mapmaker brought in two mariners and an astronomer to testify that there were not only substantial differences between the charts but that the new one had corrected some dangerous errors in the earlier ones caused by the failure to observe the principles of Mercator projection. One particularly interested witness was Admiral John Campbell, the Governor of Newfoundland, who said the plaintiff’s charts were so bad that they should all be burned and their printing plates destroyed. In those days infringement trials were often tried with juries, and the jury here was directed by the Chief Justice of England, Lord Mansfield, to steer a course between two “equally prejudicial extremes:” on the one hand, not to deprive those who have “employed their time for the service of the community … of their just merits and the reward of their ingenuity and labour;” on the other, not to deprive “the world … of improvements” or “retard the progress of the arts.” He made his own views clear on the merits of the case: “If an erroneous chart be made, God forbid it should not be corrected even in a small degree, if it thereby become more serviceable and useful for the purposes to which it is applied.” Unsurprisingly, the jury exonerated the second mapmaker.[7] As one hopes he would be exonerated today.

We are no longer in the 18th century, and the right to stop dramatization, translation, abridgment and 3-dimensional copying was handed to copyright owners by legislation in the 20th century. Mansfield's words nevertheless continue to resonate. Copyright may have grown and intensified, and user rights may have shrunk; yet no reason exists why both owner and user rights should not be given equal weight and respect. For without users, what is the point of copyright law at all? Users are just as important to the institution as are authors and copyright owners. They therefore deserve equal treatment — and that means balancing right against right, not right against exception. Right against exception starts the balance off with a big foot on one side of the scales. Yet that big foot came to dominate Canadian law right up until this century. The Supreme Court of Canada itself said in 1990 that copyright had but a “single object”: “the benefit of authors of all kinds.”[8]

And the lower courts took it at its word. In 1995 a court had to decide a case between the Michelin Tire Company and a union which was trying to organize labour at a Michelin plant in Nova Scotia. The company said the leaflets the union was distributing to workers infringed the copyright in the “Michelin man” logo, by picturing him with a foot raised, ready to stomp on a worker’s head. The union said it was parodying Michelin’s anti-union stance and this was fair dealing. The court ruled against the union, calling fair dealing an “exception to copyright infringement” and saying it should therefore be “strictly interpreted.”[9] The judge refused to accept parody as a species of criticism: if parody was a purpose for which you could deal fairly, why was it not specifically mentioned? The union fell over the attribution tripwire too: it had not acknowledged the source of the logo — as if this could not be discerned from the liberal peppering of the Michelin name throughout the leaflet. And just for good measure, the judge went on to say that copyright was property and the union’s right of free expression under the Charter of Rights & Freedoms did not justify trespass on copyright any more than it justified trespass on Michelin’s land[10] — leading to the bizarre result that a right that is unprotected under the Charter (copyright) is treated as more important than one that is (freedom of expression).

The Michelin case was not appealed but almost everything said there about copyright, fair dealing, property, and the Charter was probably wrong in 1995, and it is certainly all wrong now. It took just a decade and two Supreme Court cases to deflate Michelin. The first, in 2002, was a case called Théberge v. Galerie d’Art du Petit Champlain Inc.[11] It dealt indirectly with user rights by deciding that an artist’s right to prevent reproduction of a poster of his could not stop a gallery from using a chemical process to lift the image physically off the poster and transfer it to canvas, leaving the poster blank. Users could do what they liked with tangible property they owned, unless the Copyright Act clearly stopped them. But it didn’t — because re-production implies producing at least one additional copy. Along the way, the Court echoed Mansfield to say that protecting authors was not the only thing copyright was about. True, creator rights had to be respected but "due weight" had to be given "to their limited nature." It added that:

Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole, or create practical obstacles to proper utilization.[12]

These ideas underlie the case with which you are no doubt familiar, CCH Ltd v Law Society of Upper Canada in 2004.[13] Law book publishers wanted royalties for the photocopying of books bought for law firm libraries. The lawyers said “no”, so the publishers, supported by a copying collective, sued what is now the Law Society of Ontario for copyright infringement. The publishers said that anytime anyone on library premises photocopied a case from one of the library’s law reports, or a case summary from a digest, or a passage from a legal treatise, they were guilty of infringing the publishers’ copyrights. So too was any librarian who copied for a lawyer in rural Ontario who could not afford to drive the few hundred miles needed to Toronto every time they had to nail down a point of law. The Law Society was said to be equally at fault for letting its patrons photocopy and its librarians transmit photocopies electronically, even though the Society’s guidelines restricted copying to research or other statutory purposes, and notices by its photocopy machines warned against infringement.

The Society replied that all these activities were fair dealing for research purposes; that any copying by librarians anyway fell within the statutory user right dealing with library photocopying; and that, if any patrons had infringed, the Society was not liable since it had not “authorized” them to infringe.

A major problem here is how to know when a dealing is “fair” - the same problem that 18th and 19th century judges faced. For, as one court said recently in another context, fairness is ultimately grounded in social and moral values. These values, or attitudes, can be stated. But they cannot be justified, or refuted, by any objective process of logical reasoning. Moreover, they change from one generation to the next. It is not surprising therefore that… there can be different views on the requirements of fairness in any particular case.

Parliament has passed the task of reflecting current social and moral values in decisions on copyright over to the Copyright Board and the courts because Parliament itself cannot itself micro-manage practices as they evolve over time.

How the courts handled the task in CCH is therefore important. The trial court predictably followed the Michelin case by construing the fair dealing exception “strictly” and found for the publishers. The publishers also won on appeal before the Federal Court of Appeal, but significantly the court disagreed entirely with the trial judge's approach. It generously cited from my then recent book on Copyright Law that had criticized both the Michelin case and the trial judge in CCH and it went on to accept fair dealing as a “user right” that should be liberally construed.[14] The court however let the trial judge’s conclusion stand because, while what the library did was probably fair dealing, the same could not necessarily be said of every patron.

On further appeal, however, the Supreme Court unanimously dismissed the publishers' case. It said the practice the Law Society had adopted amounted to fair dealing despite possible isolated examples of unfair dealing by patrons; and the library photocopying right equally applied if it was needed

On user rights and fair dealing, the then Chief Justice Beverley McLachlin said this:

[T]he 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. … “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.”[15]

The Chief Justice concluded by confirming that “research” applied to commercial and non-commercial uses alike and that it had to be given "a large and liberal interpretation" in order to ensure that users’ rights are not unduly constrained.[16]

Of course, as often happens, technology gave the copyright owners the last laugh. The publishers put their legal material online and so acquired a new income stream that more than compensated them for any lost photocopying royalties. And yesterday’s owners can easily become today’s users; so that when the publishers were sued by the lawyers for putting pleadings and written briefs online without getting their consent, what defence finally caused the case to settle? Fair dealing for purposes of legal research, of course.[17]

Three later Supreme Court decisions double (or perhaps triple) down on the CCH case. In one decided in 2012, SOCAN, Canada’s musical performing right society, wanted online providers such as iTunes to pay for the snippets of music they streamed for users browsing on-line for recordings they might buy. The Court agreed with the lower tribunals in dismissing SOCAN's case: users were doing “research” and iTunes’ facilitation of it was a fair dealing.[18] In another case decided that year, Access Copyright wanted schools to pay for photocopying short excerpts from books for the use of their students. The Copyright Board decided the copying was not fair dealing and set a royalty rate but the Supreme Court thought the Board had misinterpreted “research and private study” and had also not properly weighed the fair dealing factors. It was the user's perspective on fair dealing that ultimately mattered more than the copyright owner's perspective. The Board was told to reconsider its decision, which it later did by deciding for the schools.[19]

The third case, brought by Access Copyright against York University in 2021, hammered this message home. The question was whether the university’s guidelines for producing coursepacks and other student material complied with fair dealing for the purposes of education. The guidelines were those developed by the Canadian Association of Universities and Colleges in light of its interpretation of CCH and the later Supreme Court decisions. They allowed the copying of short extracts for coursepacks, class handouts, or their internal electronic classrooms. Short extracts were further defined: up to 10% of a work; a single chapter from a book; a single article from a journal; a single artistic work from a collection; an entire newspaper article or page; a poem or music score from a compilation; or an entire dictionary or encyclopaedia entry. Instructor discretion was required: only what was required for the purpose could be taken.

The Copyright Board and the lower courts all said the guidelines were too generous and did not amount to fair dealing. The Supreme Court on appeal unfortunately did not decide that point on a technicality: only copyright owners could complain of infringement and Access Copyright, the only plaintiff, just held a non-exclusive licence from the owners. They had no more standing to sue that a gardener hired by a land owner would have against someone trespassing on the owner's land. That however did not stop the court saying that the lower tribunals had got their fair dealing analysis all wrong by virtually ignoring the students’ perspective as users, despite what the Schools Photocopying case had decided.[20] Again in echoes of Mansfield, they emphasized achieving "the proper balance between protection and access in the Act,” for increasing access was "a primary goal of copyright."[21]

Two factors probably contributed to the Court's jettisoning of the language of exceptions and its adoption of the concept of user rights. First was the recognition that copyright law was about rights of expression of not just authors and copyright owners, but rather everyone. From there, it was a short step to treat fair dealing itself as an aspect of the right to free speech — a right that the court had, by the time of the CCH case, already called a “vital concept” to be restricted only “in the clearest of circumstances.”

The second factor was the insistence in the Universal Declaration of Human Rights of 1948 on everyone's right "freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits." The Declaration did also recognize the rights of authors to have “the moral and material interests resulting from [their] scientific, literary or artistic production” protected; but significantly that right follows the right to access: i.e., once again, access is the rule and copyright the exception.[22] And access has a greater claim to being a natural human right than does copyright which, after all, is a right that can be bought and sold and is more often held by corporations than humans.

I want to highlight 5 additional points that can be deduced from these and other fair dealing cases:

First, a liberal interpretation of fair dealing led in the iTunes Case to democratizing “research” to include not just what academics and scientists do but also research carried on by ordinary members of the public, what others might call “shopping”. In the School Photocopying case, it meant that fair dealing for the purpose of the student’s research or private study also included what teachers did for their students' benefit; whether the research or study occurred in the classroom or the student’s private study did not matter.

Second, the longer a work and the more that is taken, the less likely will the dealing be fair, especially where it undercuts the copyright owner’s market. That was what ultimately made the copying of the CSA's electrical code in the case I mentioned earlier unfair: the copyright owner was unfairly harmed from its sales being undercut by the copier's sales of the whole code. That does not mean that fair dealing cannot apply to whole works: how else can haiku or a photograph be criticized or reviewed? Also, if the ultimate dealing is fair, you may be initially able to take a whole work temporarily to use as the raw material for the ultimate work: if the latter is found to be a fair dealing, the taking of the whole can shelter under its umbrella.[23] So Google's digitization of whole books to enable them to be searched by key words was held a fair use in the US project[24] -- a potentially important point for data mining by AI.

Third, the dealing must be fair in relation to its purpose and medium. Extracts that are unfair in length for a newspaper may be fair if used in a television news film.

Fourth, dealings for mixed or multiple purposes are acceptable: criticism remains criticism even if its aim is also or mainly to amuse. The overall purpose is judged objectively: a user’s sincere belief that they are criticizing is less important than whether the activity is in fact part of an exercise in criticism.

Fifth, where a published work is involved, fair dealing is concerned with the purpose of the use, not how the source work was acquired. Even with unpublished works, how they were acquired is much less important than how they are used. Thus a couple of court decisions apply fair dealing even where a copy emanated from behind a paywall or involved circumventing a digital lock (the euphemistically named "technological protection measure"),[25] a point that will no doubt be more fully debated in the AI litigation currently before Canada's courts.

What of the future? I shall not say anything about the constant pressure parliamentarians and the government face from copyright lobbyists to cut down or eliminate user rights, except that the scenario is reminiscent of what preceded the passage of the first copyright law in England in 1710. There, as one source puts it, the stationers, the publishers and printers of the day, "came up to parliament in the form of petitioners, with tears in their eyes, hopeless and forlorn; they brought with them their wives and children to excite compassion, and induce parliament to grant them a statutory security.”[26] Nothing much has changed 3 centuries later, except that the lobbyists now usually leave their kinfolk at home.

I shall instead mention 5 issues: Are user rights waivable, i.e., can you contract out of them? Besides fair dealing, will the more general defence that a particular use is justifiable in the public interest become more prominent? Should Canada adopt US-style fair use? Will user rights apply to moral rights? How will user rights interact with AI?

Parliament could of course clarify these issues by legislation but perhaps other things are occupying it at the moment.

We need a clear indication whether user rights can be waived or contracted out of. Recent scholarly work suggests that the international convention on copyright, the Berne Convention, requires at least fair dealing to be treated as a mandatory right.[27] A good argument can be made that our Copyright Act already complies with the Convention by implication. If user rights are indeed an “essential part” of copyright protection” — to quote the language of the Supreme Court[28] — it is hard to see how they may be waived or modified, certainly not by any standard form contract or click of a mouse. Otherwise what the Court has called the Act’s “central” goal of disseminating original work, “developing a robustly cultured and intellectual public domain,” and sensitively balancing protection and access to copyright works,[29] could be utterly frustrated. The point could be decided by a court but having explicit legislation is always better and the Act could usefully be amended to that end, as the UK has done.[30]

The fair dealing right tends to overshadow a couple of companion principles that do not appear in the Copyright Act and that are unwaivable. One is that copyright may be overridden for higher order reasons of public interest or public policy.[31] The other one allows the right to be overridden for “just cause or excuse,” a formula more commonly used to override equitable or contractual obligations.[32]

These principles are part of the general or common law and dwell alongside the Copyright Act. They provide additional safety valves to prevent copyright from going beyond its purposes or affecting activities that are more important than copyright. Suppose someone libels you in an email: copyright law should not interfere with the recipient's right to forward a copy of the email to you, nor your right to make and circulate copies in good faith with an explanation in order to defend your reputation. You should not have to try to squeeze these acts of copying into fair dealing. You should be able to rely straightforwardly on what one English judge a century ago called your “inalienable” right to vindicate your reputation.[33] Clearly nothing in the Copyright Act takes that right away.

Copyright may also be overridden where a work is, as a British court put it, "injurious to public life, public health and safety or the administration of justice".[34] We have a Canadian case like that, where a court in New Brunswick dismissed an engineer's claim that the structure of a building he had designed could not be modified without his consent, despite the dangers to public safety presented by his original design.[35] Cases involving the administration of justice include copying material for use or possible use in judicial or administrative proceedings (e.g., in a copyright infringement trial),[36] or copying a court’s reasons for judgment (which have little claim to copyright anyway); [37] and no-one doubts that a bank robber’s plans may be copied to pass on to the police or the intended victim.[38]

There is however a need to clarify the scope and content of this defence. In a case decided aptly enough in 1984, the federal government was able to stop the publication of a condensed version of a lengthy government report on competition in the petroleum industry.[39] The court thought that just making public information more accessible more cheaply was not important enough to justify even a non-competing publication. Perhaps fair dealing as it is currently understood could remove this blot on the jurisprudence; if not, a public interest defence with appropriate criteria could explicitly be built into the Copyright Act.

The restriction of fair dealing to 8 specific purposes has been criticized as illogical and too constraining. The overall question should be whether any use is fair, whatever the purpose. Some countries, including Singapore and Israel which inherited Britain's fair dealing criteria, have adopted a US-style fair use system with purposes that are illustrative rather than exhaustive. The adoption of some version of it in Canada would make fair dealing more conceptually coherent and public interest defences outside the Act largely redundant. It would also put Canadian creators on a more level playing field with their US counterparts. In the US, Google's copying of a sizeable portion of Oracle’s Java computer code to create apps for Google’s Android smartphone was held a fair use: it “reimplement[ed] a Java user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program”.[40] That activity would have had difficulty passing muster in Canada: “transformation” is not a defined purpose for fair dealing and it is hard to see how what other purpose Google’s taking could be juggled into.

Besides creating copyright, the Act also gives authors and performers the right to stop their work being distorted or modified to the prejudice of their honour or reputation, and also the right to have their work attributed where reasonable. The fact that it does not explicitly make these rights subject to fair dealing or any other user right seems an oversight. Meanwhile it is hard to see why user rights should not apply indirectly or analogically to moral rights. Moral rights have to balance the interests of authors, copyright owners, users, and the general public just as copyright must. It would be odd, for example, if a parody that was a fair dealing nevertheless infringed the author's integrity right, at least where the author and copyright owner are the same person or their interests are substantially aligned.

Moral rights must anyway be subject to the same public policy or public interest defences as apply to copyright. The case I mentioned earlier of the engineer's copyright that was overridden for public safety reasons also involved overriding his moral rights. The court had no hesitation implying a term into the construction contract that prioritized the structural integrity of the building over the engineer's imagined affront to the artistic integrity of his design.[41]

How user rights in their current form interact with generative AI is going to arise in the various class actions against ChatGPT, Meta, Anthropic, and others wending their way through various Canadian courts. The scale and complexity of the technology and the issues it raises go beyond anything Canadian caselaw has dealt with so far. Some of the problems disappear where the material mined and used by AI is used with consent. Google's terms and conditions give it broad rights to use material on its platforms and other AI operators too have reached agreements with content providers.

Without such consents, we need to see whether fair dealing covers what happens at both the input and output ends of the process. Let us accept that AI output is used mainly for research or private study or some other allowable purpose, despite the occasional deviation. Is it fair at the input end that AI indiscriminately copies masses of whole works without consent to achieve the relevant purpose? At the output end, would the work AI generates substantially reproduce an input that would compete with an identifiable copyright owner or harm their interests? Would moral rights of integrity and attribution be respected? Are there safeguards that minimize such adverse consequences or prevent misinformation or the creation and distribution of deep fakes?

The US largely relies on its fair use doctrine to control AI mining and use but the EU went the route of legislation in 2019 by requiring member states to enable text and data mining by educational and other cultural institutions such as libraries and archives for non-commercial research in the sciences and humanities, and also for general purposes with an opt-out provision for copyright holders who do not want their material hoovered up.[42] The system is working only moderately well and has also been criticized for not looking adequately after the interests of the authors on which the whole system relies. It is better for Parliament to act sooner rather than later so that people know where they stand without having to bear the enormous costs and delays of litigation.

I conclude by echoing what I said in a lecture to the Copyright Society a few years ago:

User rights do not set their sights on the author as a moving target. They instead aim to ensure that both authors and users benefit from the culture to which both contribute. The touchstone of fair use and fair dealing should be a fair deal -- and that means a fair deal to all.

Thank you for your attention.

[1] Parts of this talk were based on a paper “User Rights in Canadian Copyright Law” presented at the Ontario Library Association’s Copyright Symposium on December 8, 2021.

[2] i.e., one must consider (1) the purpose of the dealing; (2) its character; (3) its amount; (4) what alternatives to it exist; (5) the nature of the work; and (6) the effect of the dealing on the work: CCH Canadian Ltd v Law Society of Upper Canada 2004 SCC 13 at [50] [CCH].

[3] Copyright Act, ss 29.1 & 29.2.

[4] P S Knight Co Ltd v Canadian Standards Assn 2018 FCA 22.

[5] Canadian Standards Assn v P S Knight Co Ltd 108 F 4th 329 (5th Cir 2024)

[6] Sayre v Moore (1785) 102 ER 139n, 1 East 361n (KB).

[7] Ibid; see too I Alexander, “Sayer [sic] v. Moore (1785),” c 3 in J Bellido (ed), Landmark Cases in Intellectual Property Law (Oxford: Hart 2017).

[8] Bishop v Stevens [1990] 2 SCR 467.

[9] Michelin v CAW [1997] 2 FC 306 at [65]ff.

[10] Ibid.

[11] Théberge v Galérie d'Art du Petit Champlain Inc 2002 SCC 34.

[12] Ibid at [30]-[2].

[13] CCH, n 6.

[14] CCH Canadian Ltd v Law Society of Upper Canada 2002 FCA 187 at [126].

[15] CCH, n 6 (SCC) at [48].

[16] Ibid at [51].

[17] Waldman v Thomson Reuters Can. Ltd 2014 ONSC 1288 at [92], approved, although the refusal to approve the class action settlement was reversed, 2016 ONSC 2622 at [28] (DC).

[18] SOCAN v Bell Canada 2012 SCC 36 [Bell].

[19] Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright) 2012 SCC 37.

[20] York University v Canadian Copyright Licensing Agency (Access Copyright) 2021 SCC 32 at [103] & [105] [York]

[21] Ibid at [90] & [92].

[22] Declaration, arts 27(1) & (2).

[23] Pro Sieben Media AG v Carlton Television Ltd [1998] EWCA Civ 2001

[24] Authors Guild v Google Inc 804 F 3d 202 (2d Cir 2015).

[25] 1395804 Ontario Ltd (Blacklock's Reporter) v Canada (A-G) 2016 FC 1255; 1395804 Ontario Ltd. (Blacklock's Reporter) v Canada (A-G) 2024 FC 829.

[26] Donaldson v Beckett (1774), HL.

[27] L Bently & T Aplin, Global Mandatory Fair Use: The Nature and Scope of the Right to Quote Copyright Works (Cambridge: CUP 2020).

[28] Euro-Excellence Inc v Kraft Canada Inc [2007] 3 SCR 20 at [79] (fair dealing);.

[29] Bell, n 45 at [10]-[1]; similarly York, n 48 at [91]ff.

[30] CDP Act, ss 29(4B), 30(4), amended in 2014 to ban contracting out of fair dealing for research (albeit only non-commercial), private study, criticism, review, and reporting of current events.

[31] R v James Lorimer and Co. Ltd [1984] 1 FC 1065, 1078 (CA) [James Lorimer]; compare Lion Laboratories Ltd v Evans [1985] QB 526 (CA); R Burrell & A Coleman, Copyright Exceptions: The Digital Impact (Cambridge: CUP 2005), ch 3 (“The Public Interest Defence”).

[32] Church of Scientology of California v Kaufman [1973] RPC 635, 648-9 (Ch).

[33] Scott v Scott [1913] AC 417, 448 (HL); see too Perceval v Phipps (1813) 2 Ves & B 19, 25-6, 29 (V-C); Maccaba v Lichtenstein [2004] EWHC 1579 (QB).

[34] Hyde Park Residence Ltd v Yelland [2000] EWCA Civ 37 at [66] [Hyde]

[35] John Maryon International Ltd v New Brunswick Telephone Co Ltd 1982 CanLII 2906 at [151] (NBCA) [John Maryon].

[36] Wall v Brunell (1997) 75 CPR (3d) 429 (Fed TD); R v Gibbs 2003 BCPC 527 at [45]; compare Unclaimed Property Recovery Service Inc v Kaplan, Case No 12-4030 (US 2d Cir, Aug 20 2013) (pleadings and exhibits).

[37] Cojocaru v British Columbia Women’s Hospital and Health Centre 2013 SCC 30 at [31]-[4]; 288; CCH, n 39 (FCA) at [225]; Apotex Inc v Eli Lilly & Co 2019 ONSC 2643 at [17] (court directs briefs to hyperlink case law references to CanLII).

[38] Hyde, n 68 at [46]-[8]. It also thought that the same applied to a work that was "immoral, scandalous or contrary to family life", a less relevant factor for Canada.

[39] James Lorimer, n 65.

[40] Google LLC v Oracle America Inc 593 US — (2021), by Breyer J. Consider also National Rifle Assn of America v Handgun Control Federation of Ohio 15 F 3d 559 (6th Cir 1994), where an anti-gun lobby group’s copying of the NRA’s list of politicians for the group’s opposing purposes was held fair use. “Politics” is not an allowable purpose in Canada: could the use here qualify as “research” or “criticism”, generously interpreted?

[41] John Maryon, n 69 at [153].

[42] Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, arts 3 & 4, preambles 5-18.