Part 2 of CIPPIC's Fair Dealing Week Series:

March 4, 2024, will mark a significant milestone in Canadian copyright law: the 20th anniversary of the Supreme Court of Canada's unanimous decision in CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13. Justice Binnie’s judgment stands as a beacon of transformative copyright jurisprudence. Among its many ground-breaking aspects, its re-imagination of fair dealing as a fundamental user right stands apart. 

Two years earlier, Justice Binnie’s portentous majority decision in Théberge v. Galerie d'Art du Petit Champlain inc., 2002 SCC 34, had laid the groundwork for reimagining the Copyright Act as a statute that balances interests for the benefit of society as a whole. In CCH, Justice Binnie spelled out the consequences of this interpretational approach with the recognition of user rights in copyrighted works.  

Justice Binnie recognized that copyright's exceptions and limitations are not mere technical defenses or loopholes but vital allocations of entitlements to use expressive works. This framing saw fair dealing as not just as a defense but an integral part of the Copyright Act: a user's right essential for preserving the equilibrium between copyright owners' and users' interests.

Substantively, Justice Binnie’s analysis of the fair dealing defense did two things.  First, his broad reading of the categories of fair dealing transformed this analysis from a pigeon-holing exercise into an afterthought. Virtually all substantive dealings with a work will qualify for one of the categories of fair dealing. In this sense, Justice Binnie brought Canada’s fair dealing rights much close to American fair use rights.  Second, Justice Binnie introduced a robust fairness analysis, identifying non-exhaustive factors that courts can use to assess the fairness of a dealing. This supple, balanced approach bequeathed the Copyright Act the flexibility and responsiveness it lacked but needed to vindicate public values inherent to many uses of copyrighted content.

Justice Binnie’s decision resonates with core values that underlie copyright law, including expressive values.  In 1997, I published an article called "Constitutionalizing Copyright", arguing that the then-current restrictive approach to copyright exceptions and limitations potentially impinged on Charter rights guaranteed by freedom of expression. I suggested that one means for address this problem was for courts to read the fair dealing defense more broadly to accommodate express values. Seven years later, Justice Binnie’s decision answered that call. 

As we commemorate the 20th anniversary of CCH, Justice Binnie’s brave decision serves as a reminder of the enduring impact of imaginative judicial decision-making in shaping the landscape of copyright law. Looking ahead, public interest advocates will continue championing fair and balanced copyright. Balanced copyright safeguards both creators' rights and users' interests, recognizes that copyright must serve the interests of creators both past and future, and fosters innovation, creativity, and access to knowledge.

This opinion was written by CIPPIC General Counsel David Fewer. The opinion is the author's, and does not necessarily reflect CIPPIC's policy position.