E&O 2.0: A Fair Dealing Odyssey

Welcome to another instalment of comments on errors and omissions ("E&O") insurance and legal review!

Canada's Copyright Act (the Act) is not like that of our neighbours' to the south of the 49th parallel. Length and size aside, when it comes to Fair Dealing (or Fair Use as it is called by our North American cousins), Canada's Act circumscribes the categories of Fair Dealing to prescribed categories. We do not apply the concept of "transformative use", nor do we have the benefit of the U.S. Constitution's First Amendment freedom of speech and expression to override the application of copyright laws on a case-by-case basis. We also do not have a red line established in Canadian copyright jurisprudence that sets out exact bright lines that cannot be crossed when using the copyrighted works of another without their authorization lest you fall into the realm of having committed copyright infringement. Our esteemed courts give us guidance, which we follow, but unlike