Here is my article that ran in the March 12th Lawyers Weekly (Volume 29, Number 41, Focus on Intellectual Property section) . . .
Parliament will likely deal again with the issue of copyright reform. A major issue emerging from last year's government consultations on the issue was the role of fair dealing and the need to update the Copyright Act to better conform with judicial interpretation and general practices.
The Act's fair dealing provisions should be amended to correspond with the values stated by the Supreme Court of Canada in CCH v Law Society of Upper Canada  1 S.C.R. 339. This could be accomplished simply by adding the words "such as" to the existing listing of categories and by incorporating the six fair dealing criteria adopted by the court into the Act.
In framing the consultation process, the government asked how copyright law could be changed to withstand the test of time based on Canadian values and interests. It also asked what changes would best foster innovation, creativity, competition and investment. These goals are best served by recognizing Canada as a haven for fair copyright practices, reflecting the balanced approach envisioned by the court. Practising fair copyright, which may take on different forms in different contexts, should become the hallmark of a Canadian copyright culture, reflecting Canadian values and encouraging, rather than impeding, the creative and transformative uses of new information technologies.
CCH was of historical importance because it clarified the purpose of fair dealing and its role in the copyright system. In holding that fair dealing is not simply a technical defence to infringement, but is more propery understood as an integral part of the act, the court characterized fair dealing as a user's right which, in order to maintain the proper balance between the rights of a copyright owner and users' interests, must not be interpreted restrictively.
The court also held that the enumerated categories in the Act must not be strictly construed. Their reasoning that "research" must be given a large and liberal interpretation in order to ensure that users' rights are not unduly constrained should equally apply to the other categories (private study, criticism, review, news reporting).
The court adopted six criteria to determine whether the dealing in a particular case is fair: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work.
The court thereby recognized the flexibility and fluidity of fair dealing.
In specifically approving the access policy adopted by the Law Society of Upper Canada's Great Library, the court recognized the importance of institutional policies seeking to make the fairness factors operational. Rather than seek new special exceptions, educational institutions should develop their own sets of best practices for determining what does and does not constitute fair dealing.
It is important not to become too fixated on the particulars of the new technologies of the day, as copyright laws should be technologically neutral. Technology-specific provisions will quickly become outdated (like the dry erase board and flip chart exception in s. 29.4 of the Act added in 1997).
Simplicity and understanding is not well served by having different rules depending on whether one is sitting at home or at school. As for Canadian values and interests, any changes to the law must reflect the broad concerns of the Canadian public, a public that is increasingly using information and media resources in interactive, creative and transformative ways.
A serious flaw with Bill C-61 was its undue complexity. Parliament should avoid over-drafting technical rules with labyrinth exceptions and complex conditions and counter-exceptions. The law should be broadly understandable. As the roles of users and creators converge, Canadians will want to consistently engage in fair copyright practices. But respect for the law is eroded by the long cryptic passages that dwell on technical details and contain rules, exceptions, conditions and counter exceptions as in Bill C-61. It is encouraged by adopting understandable principles that can be applied in practice.
Opponents of fair dealing expressed concerns that relaxing the categories would make works free to use to the prejudice of owners. This concern is misplaced. Fair dealing is not free dealing, since the factual tests of fairness must still be met.
Another objection has been that increased flexibility might somehow violate the three-step test in TRIPS (the Trade-related Aspects of Intellectual Property Rights agreement) with respect to limitations. But given the reality that the U.S. Copyright Act has used an open-ended approach since its codification in 1976, it is unlikely that such a challenge would be viable. And TRIPS notwithstanding, Canada retains its sovereign ability to set the baseline values on what constitutes the general outline of its copyright regime. At least as far as the Supreme Court is concerned, users' rights are not simply limitations or exceptions, but an integral and underlying part of the copyright system itself.
Samuel Trosow is an associate professor at the University of Western Ontario (Faculty of Law and the Faculty of Information and Media Studies). He is the co-author of Canadian Copyright: A Citizen's Guide (with Laura Murray, Between the Lines, 2007) and his full submission to the copyright consultation was republished in the Osgoode Hall Review of Law and Policy (November 2009).