Strengthening Canadian User Rights through Shared Understanding: Adapting the Codes of Best Practices in Fair Use for Canada

CARL Position Paper for Fair Dealing Week 2021Canadian fair dealing is, in many ways, one of the most flexible and strong copyright exceptions in the world. The courts have determined that a restrictive interpretation of fair dealing would upset the balance between rights of creators and rights of users, and the education sector across Canada applies guidelines (for example, the Universities Canada Guidelines) that have enabled the widespread use of fair dealing for the provision of course materials. Yet, for many other activities and purposes, the scope and application of fair dealing is unclear. As a result, many Canadian communities of practice avoid using the exception, reinforcing permission culture or even stopping some projects in their tracks. Canada would thus benefit from a robust framework of fair dealing codes of best practice that are similar to those in place in the United States. In this paper, we argue that while fair dealing is not a carbon copy of fair use, it is similar enough that many of the principles and limitations set out in the many codes of best practices in fair use published in the United States would be applicable in the Canadian context. In addition, we argue that collaborating with Canadian communities of practice to help build a network of new or adapted codes of best practices in fair dealing is an effective and necessary strategy to help break down the fear and uncertainty surrounding the application of fair dealing to specific situations that are not addressed by institutional policies. We also suggest that the best place to start is with adapting the most recent code, the Code of Best Practices in Fair Use for Software Preservation, as the need for clarity on such applications was raised during our preliminary consultations with the software preservation community in Canada