Celebrating 20 Years of Fair Dealing: Reflecting on the Landmark Decision of CCH

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. Chief Justice McLachlin’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, a unanimous Court spelled out the consequences of this interpretational approach with the recognition of user rights in copyrighted works.

The Court 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, the Court’s analysis of the fair dealing defense did two things.  First, its 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, the Court brought Canada’s fair dealing rights much close to American fair use rights.  Second, the Court 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.

The Chief Justice'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 addressing this problem was for courts to read the fair dealing defense more broadly to accommodate expressive values. Seven years later, CCH arrived at that same conclusion.

As we commemorate the 20th anniversary of CCH, the Court’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.