Jump to content

Conflict of the Canadian legislation and case law with the international norms, in particular with the three-step test

Conflict of the Canadian legislation and case law with the international norms, in particular with the three-step test

Download

The Canadian legislation and case law on fair dealing for educational purposes is in conflict with the international treaties; in particular with the three-step test under Article 9(2) of the Berne Convention, Article 13 of TRIPs Agreement and Article 10 of the WIPO Copyright Treaty (WCT).  Those elements of the case law which are incompatible with the international treaties appeared first in CCH where the Supreme Court of Canada introduced the “user rights” doctrine and the principle of “large and liberal” application of the provisions of fair dealing by which it seriously upset the balance to the detriment of the legitimate interests of authors and other owners of copyright. The way the Court interpreted and applied the six fair dealing factors introduced in CCH aggravated the conflict. In Alberta (Education), the Supreme Court extended the application of the unbalanced “user rights” doctrine and principle of “large and liberal” application of fair dealing to the important field of education. More or less in parallel with this, the Parliament also included education into the list of allowable fair dealing purposes, without any criteria to make it a special case in accordance with the three-step test. As a result of these judicial and legislative developments, creative and publishing activity has significantly decreased in the field of educational publications. The York University decision of the Federal Court has raised the hope that the obvious conflict of the court practice with the international treaties might be eased. However, in order to offer due guarantees for restoring compliance with the international norms, certain amendments to the Copyright Act also seems to be necessary.

Publish date: 2018-03-18 13:15:00
Last modified: 2018-03-18 13:17:00
Author: Mihály J. Ficsor