16:15

[CR] | Global talk | Canada’s Fair Dealing Defence: Constitutionally Required and Critically Necessary

Since 2004, the Supreme Court of Canada has consistently characterized fair dealing, along with other defences and exceptions to copyright infringement, as a user’s right and an integral part of the Copyright Act. In Canada, however, this right can be waived by contract. In this presentation, I will first argue that absent the availability of the fair dealing defence, Canada’s Copyright Act would not survive scrutiny under Canada’s Charter of Rights and Freedoms. Second, I will argue that if this argument is accepted, then the Copyright Act must be amended to clarify that any attempt to limit or avoid the application of fair dealing through contract will be of no force or effect.

The COVID-19 pandemic has further illuminated the importance of fair dealing to the lives of individuals. Being able to access, engage with, and disseminate copyrighted content for fair dealing purposes (including for the purposes of research, education, parody, private study, and criticism), without first having to seek the permission of the copyright owner, has been a vital lifeline for many during long periods of lockdown, school closures, and self-isolation. Clarifying that fair dealing will always be available – regardless of any contractual language to the contrary – will help preserve this critically important (and constitutionally-necessary) element of the Copyright Act.