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"Legislative Guidance" on Fair Dealing: The Plan to Reverse CCH?

By Michael Geist

My post this week on several writers groups objections to Bill C-32 has generated considerable discussion, with some taking me to task for focusing on their letter's warning of "unintended consequences,""years of costly litigation," and "serious damage to the cultural sector."  Instead, they argue that I should have focused on the call for additional "legislative guidance" on the fair dealing reforms.  After all, who could be against greater clarity in the law?

In the discussion that has followed, I believe that it has become increasingly clear that the "legislative guidance" is not really about the fair dealing reforms found in C-32, but rather fair dealing more generally. Unfortunately, the writers' letter only speaks of their concerns and does not provide any specific policy or legislative reform recommendations that would clarify their intentions. However, with the government having opened up the fair dealing provision, those groups may see an opportunity to reverse the Supreme Court of Canada's CCH decision that characterized fair dealing as a user right and established guidelines for its interpretation. 

Why do I arrive at this conclusion?

First, there is no need for greater guidance on the meaning of "education" and, even if there was, the guidance would be unlikely to change the groups' concern with its inclusion in fair dealing. By using the word alone, the government has sent the signal that it means education in the broad sense.  In fact, this is consistent with the Supreme Court of Canada, which ruled in Vancouver Society of Immigrant and Visible Minority Women v, M.N.R.:

There seems no logical or principled reason why the advancement of education should not be interpreted to include more informal training initiatives, aimed at teaching necessary life skills or providing information toward a practical end, so long as these are truly geared at the training of the mind and not just the promotion of a particular point of view...there is no good reason why non-traditional activities such as workshops, seminars, self-study, and the like should not be included alongside traditional, classroom-type instruction in a modern definition of "education."

The groups could hope that legislative guidance would limit the scope of who qualifies under "education", but given their aversion to some fair dealing uses within traditional education venues such as universities, colleges, and secondary schools, this can't be what the writers groups have in mind. Any limitations on the scope of education would surely not exclude those institutions, yet they are precisely the institutions that seem to matter the most to the writers groups.  If the scope is designed to include those educational institutions, legislative guidance might mean dropping the reform altogether, but that isn't guidance - it's gutting the reform.

If legislative guidance is not about the scope of education, what is it about?  I think the answer lies in an attempt to codify into law the fairness criteria established by the Canadian courts to determine whether a particular use meets the fair dealing standard.  As I have repeatedly noted, the mere fact that education would be a recognized fair dealing category does not mean that all educational uses qualify as fair dealing.  Rather, any use must still meet the fairness test.  It is this test - which is not even part of Bill C-32 - that the writers groups likely want to target.  Given recent comments about the need to pay for any commercial use, the groups likely want to rewrite the fairness test to specifically exclude any commercial use from meeting the fairness criteria. That would mean rolling back the CCH decision so that fair dealing would actually become far more restrictive in Canada than is currently the case (and much more restrictive than the U.S. fair use provision which has no limits on categories and does allow for the possibility of commercial fair use).

This strategy is actually even more dangerous than it appears at first blush. While the writers groups are focused on the new education exception in C-32, codifying the fairness criteria would apply to all fair dealing categories.  This would mean restricting the use of fair dealing for research, private study, news reporting, criticism, and review (as well as parody and satire, which are also included in C-32).  To take one recent example, the decision to treat song previews as consumer research for fair dealing purposes would be overturned since it involves a commercial use. I fear the call for legislative guidance is not about clarifying the meaning of "education" but rather code for overturning the CCH decision and leaving in its wake a fair dealing provision that may have additional categories, but faces far more restrictions once the fairness test is applied.

Full post as published by Michael Geist on August 27, 2010 (boomark / email).