The Supreme Court reaffirmed the principles articulated
Posted: Wed Jul 09, 2025 6:00 am
The public policy landscape in Canada has been generally supportive of access to knowledge efforts. For example, the Canadian Supreme Court has interpreted certain legal provisions, called “fair dealing,” as expansive user rights that cannot be unduly constrained. In a case called CCH Canadian Ltd. v. Law Society of Upper Canada, the Court held that it was fair dealing for the Great Library of Canada to make photocopies of court decisions on behalf of attorneys. In Alberta v. Access Copyright, the Supreme Court held that is fair dealing for teachers to copy short excerpts of copyrighted works for telegram data students in their classes. The Court found that such copying was done for the acceptable purpose of research and private study because, as a user right, the relevant perspective from which to consider the purpose was the user/student whose research and private study was furthered by the teacher’s copying. The court also held that the “amount of the dealing” factor should not be assessed in the aggregate. Instead, the court must look at the amount of the work in proportion to the length of the whole works.
In SOCAN v. Bell Canada, in the Access Copyright case. Here, the Court held that a commercial platform allowing users to stream 30-second preview clips of musical works before they decided whether to purchase the work was also considered fair dealing for the purpose of research. The Court reiterated that the purpose must be assessed from the perspective of the user and not the commercial entity that was trying to sell the music. In each of these cases, the Supreme Court of Canada acknowledged fair dealing as the exercise of users’ rights that must be broadly interpreted.
As a result of these decisions, many Canadian educational institutions developed reasonable fair dealing guidelines which provide educators with a set of criteria for determining whether a particular instance of copying requires permission, or whether it is protected by fair dealing. For example, the University of Toronto’s Fair Dealing Guidelines provide a step-by-step analysis of whether a given use of a copyright protected work may be fair dealing, as well as a few more specific guidelines about what constitutes fair dealing, allowing more uses of copyrighted works without permission.
Additionally, the Canadian legislature passed the Copyright Modernization Act (CMA). The CMA added several important user-oriented provisions, including the addition of education, parody, and satire as acceptable fair dealing purposes. Taken together with the recent Supreme Court decisions discussed above, Canadian law now allows quite a bit more flexibility in using copyrighted works without permission.
The CMA allows private individuals to do more with copyright protected works without legal liability. For example, the CMA created the so-called “YouTube exception” which allows for non-commercial sharing of user-generated content that contains copyrighted material. The provision is designed to permit activity that many ordinary Internet users engage in regularly, such as creating mashups, or using a popular song in the background of a personal home video. This provision is subject to conditions (i.e., identification of the source and author, legality of the original work or the copy used, and absence of a substantial adverse effect on the exploitation of the original work).
A series of additional provisions protect consumers from liability for other “ordinary activities that are commonly accepted,” but which had previously remained illegal under Canadian copyright law. For example, the CMA now permits format shifting of personal copies of works, such as transferring a song from CD to an MP3 player. Similarly, the CMA permits time shifting of copyrighted materials for later listening, reading or viewing. Finally, the law permits individuals to make backup copies of copyrighted works, provided that, among other things, the individual does not give any of the reproductions away to others. However, each of these expansions of user-rights to permit format-shifting, time-shifting, and the creation of backup copies are all subject to the condition that the creation of the reproduction not circumvent a “technological protection measure.” As such, they may not be as user-friendly in practice as they may appear on paper.
In SOCAN v. Bell Canada, in the Access Copyright case. Here, the Court held that a commercial platform allowing users to stream 30-second preview clips of musical works before they decided whether to purchase the work was also considered fair dealing for the purpose of research. The Court reiterated that the purpose must be assessed from the perspective of the user and not the commercial entity that was trying to sell the music. In each of these cases, the Supreme Court of Canada acknowledged fair dealing as the exercise of users’ rights that must be broadly interpreted.
As a result of these decisions, many Canadian educational institutions developed reasonable fair dealing guidelines which provide educators with a set of criteria for determining whether a particular instance of copying requires permission, or whether it is protected by fair dealing. For example, the University of Toronto’s Fair Dealing Guidelines provide a step-by-step analysis of whether a given use of a copyright protected work may be fair dealing, as well as a few more specific guidelines about what constitutes fair dealing, allowing more uses of copyrighted works without permission.
Additionally, the Canadian legislature passed the Copyright Modernization Act (CMA). The CMA added several important user-oriented provisions, including the addition of education, parody, and satire as acceptable fair dealing purposes. Taken together with the recent Supreme Court decisions discussed above, Canadian law now allows quite a bit more flexibility in using copyrighted works without permission.
The CMA allows private individuals to do more with copyright protected works without legal liability. For example, the CMA created the so-called “YouTube exception” which allows for non-commercial sharing of user-generated content that contains copyrighted material. The provision is designed to permit activity that many ordinary Internet users engage in regularly, such as creating mashups, or using a popular song in the background of a personal home video. This provision is subject to conditions (i.e., identification of the source and author, legality of the original work or the copy used, and absence of a substantial adverse effect on the exploitation of the original work).
A series of additional provisions protect consumers from liability for other “ordinary activities that are commonly accepted,” but which had previously remained illegal under Canadian copyright law. For example, the CMA now permits format shifting of personal copies of works, such as transferring a song from CD to an MP3 player. Similarly, the CMA permits time shifting of copyrighted materials for later listening, reading or viewing. Finally, the law permits individuals to make backup copies of copyrighted works, provided that, among other things, the individual does not give any of the reproductions away to others. However, each of these expansions of user-rights to permit format-shifting, time-shifting, and the creation of backup copies are all subject to the condition that the creation of the reproduction not circumvent a “technological protection measure.” As such, they may not be as user-friendly in practice as they may appear on paper.