![handle is hein.journals/rvwoecrh9 and id is 1 raw text is:
Review of Economic Research on Copyright Issues, 2012, vol. 9(1), pp. 3-46
THE ECONOMICS FAIR USE/DEALING: COPYRIGHT
PROTECTION IN A FAIR AND EFFICIENT WAY
MARCEL BOYER
ABSTRACT. The Canadian Copyright Act (R.S.C., 1985, c. C-42) in-
cludes several exceptions to the exclusive right of copyright holders.
Among the most important are the provisions concerning fair dealing,
which state that the use of a copyright protected literary or artistic work
for the purposes of private study, research, criticism or review, or news
reporting does not constitute a violation of copyright. Our objective
in this paper is to characterize the role and nature of this exception
from the standpoint of contemporary economic theory and analysis and
in the light of the recent Supreme Court of Canada decision on this
subject (CCH Canadian Ltd. v. Law Society of Upper Canada, [2004]
1 S.C.R. 339, 2004 SCC 13). We propose in the conclusion a market
based approach to maximize the dissemination of works while avoiding
unnecessary recourse to the fair dealing exception.
1. INTRODUCTION
The Canadian Copyright Act (R.S.C., 1985, c. C-42) includes several ex-
ceptions to the exclusive right of copyright holders, including the provisions
concerning fair dealing in sections 29, 29.1 and 29.2. Those sections state
that fair dealing in respect of a literary or artistic work for the purposes of
This article is based in part on my expert testimony before the Copyright Board of Canada in
the hearing Access Copyright Elementary and Secondary School Tariff 2005-2009. As such, it
is written with a large, informed if non-specialist, legal and economic audience in mind. I am
grateful to an anonymous referee for excellent comments as well as to Claude Brunet, David
Collier and Louis Gratton (lawyers at Ogilvy Renault, now Norton Rose), Roanie Levy (Access
Copyright), Paul Audley (Paul Audley and Associates), and Nicolas Marchetti (CIRANO) for
their help, encouragement and comments on previous versions of this paper. Needless to say, I
remain solely responsible for the content of this paper and of any of its shortcomings.
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