Conflict of the Canadian legislation and case law on fair dealing for educational purposes with the international norms, in particular with the three-step test
This paper was uploaded originally on August 23, 2018. At a hacker attack, it was removed; it is now uploaded again. In 2000, within about four months, two WTO panels interpreted the three-step test – as provided in Article 13 (for copyright) and in Article 30 (for patent rights) of the TRIPs Agreement – in accordance with the provisions of the Vienna Convention on the Law of Treaties (which also binds Canada); the first panel, where the author of this paper was a member, in a patent case between the European Communities and Canada and then a second one in a copyright case between the European Communities and the United States of America. The two panels agreed on the basic aspects of interpretation; inter alia, on that the three conditions apply on a cumulative basis; thus, failure to comply with any of them results in an exception being disallowed. As the copyright panel has confirmed it, “Article 13 cannot have more than a narrow or limited operation. Its tenor… discloses that it was not intended to provide for exceptions or limitations except for those of a limited nature.” In contrast with the WTO panels, the Supreme Court of Canada (SCC) has not analyzed the provisions of the treaties at all; it has only based its „user rights” doctrine (for the application of fair dealing) on certain comments in a book of a Canadian academic quoting two US academics. The Court has interpreted the doctrine – in the CCH case – in a special way combining it with three elements: (i) the understanding that „user rights” does not only mean that the performance of certain acts are permitted, it also means that those “rights” are at least on an equal level but rather even superior to author’s rights; (ii) the principle of „large and liberal” interpretation of fair dealing and other exceptions (although the adjectives „large” and „liberal” are just the antonyms of the criteria of the three-step test according to which exceptions may only be applied in limited, confined, special cases); (iii) six factors to be taken into account to find fair dealing, all suggesting the superiority of „user rights” (among them the impact of fair dealing on the market (normal exploitations) of works, which also is only to be taken into account; a conflict with such exploitations – in contrast with the three-step text – is not supposed to be an obstacle to find fair dealing). The paper discusses in detail why and how the Canadian copyright law has got into conflict with the international treaties due to this pro-user case law – which became particularly conspicuous when applied in the Alberta (Education) case. By the 2012 Copyright Modernization Act, amending the Canadian Copyright Act (CCA), adopted nearly in parallel with Alberta (Education), the allowable fair dealing purposes have been extended to education in general without any specification whatsoever. This differs from the provisions of the international treaties (in particular Article 10(2) of the Berne Convention) and the national laws of Canada’s main trading partners where educational exceptions are limited to special cases, and – combined with the principle of „large and liberal” interpretation of fair dealing – has the potential of getting into even more serious conflict with the three-step test. The York decision of the Federal Court has raised the hope for reestablishing the concordance of the Canadian copyright law with the international treaties. It seems, however, that for this it would also be necessary to amend the CCA by limiting the application of educational fair dealing to special cases in accordance with the three-step test. The copyright laws of Canada’s key trading partners offer appropriate examples how this may be achieved.