Supreme Court Decision Could Keep Canada Fair

With the recent explosion of topical "social commentary" documentaries from filmmakers like Michael Moore and Canada's Mark Achbar, we often assume that much of the material that is used in these "docs" is not in violation of US and Canadian copyright law. The standard answer from lawyers involved in Errors and Omissions insurance is that while much material will be exempted under the American concept of Fair Use as "commentary" (more on that one later), the Canadian concept of Fair Dealing is much narrower and very limited. While it's a bit early to say that this notion is no longer accurate, a recent Supreme Court of Canada decision has opened up the question just a wee bit.

Let's start with a bit of history. Under the US Copyright Act, there are many potential copyright infringements exempted, of which "commentary" is one. To show that the "commentary" is a Fair Use, the most important thing the US courts are looking for is a "transformative" element. While there are many somewhat conflicting cases on the question of what transformative means, (please consult an expert before you act) the bottom line is that the US courts are trying to exclude the use of copyrighted material where there is no valid social, educational or artistic purpose but only a commercial purpose.

So, for instance, a book with a series of trivia questions based on Seinfeld was not held to be a transformative use because the writers of the book were using Seinfeld purely for a commercial purpose (i.e. to sell their books.) By contrast, Andy Warhol's silkscreen of Chairman Mao, was found to be transformative because Warhol's art went "beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself." Generally, the use of copyrighted material to make a social comment would be considered a transformative use.

The Canadian Copyright Act does not exempt "commentary" as fair dealing but does exempt "criticism and review." There have not been many cases considering the meaning of these words or for that matter the ambit of Fair Dealing in Canada generally. That is partly because we didn't (and still don't exactly) have a constitutional right of free speech like the US First Amendment or a history of being litigious.

The traditional view has been that "criticism and review" should be narrowly interpreted and that these words will only serve to protect copyrighted material in actual "reviews" such as a book or film review we would see in a newspaper or on Ebert and Roeper. A recent case indicates that our highest court is inclined to take a broader view of Fair Dealing.
In that case, the Supreme Court noted that the exempted uses of "research, private study, review, criticism and news reporting" are more properly a user right then an exemption to copyright law and that in order to strike a balance between the "user rights" and the rights of the copyright holder these words must not be interpreted too restrictively. Secondly, the court defined six factors (which are similar to the factors used in the US) to determine whether the dealing is fair. These factors relate to the purpose, character, and amount of the dealing and to the alternatives to the dealing, the nature of the work and the effect of the work on the dealing.

Nonetheless the case was not about a film but was about Xeroxing at a law library, something that clearly fell within the research exemption, so it is still too early to read too much into this case. The best we can say is that this case seems to usher in a period of greater possibilities for documentary filmmakers in Canada.
- Harvey Meller