What is Fair Dealing?
Copyright holders have the right to control how their work is used; however, this right is not absolute. The Copyright Act C-42 permits others to use portions of a copyrighted work without obtaining permission. This is known as Fair Dealing.
The Fair Dealing section of Bill C-42
29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.
Criticism or review
29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:
(a) the source; and
(b) if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer’s performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal. (Copyright Act C-42)
TWU has adopted the Fair Dealing Policy to provide guidance to faculty members, instructors, staff members, and students on when copying and communicating a copyright-protected work would fall within the fair dealing exemption. The policy permits faculty members, instructors, and staff members to copy and communicate, in paper or electronic form, short excerpts from copyright-protected works for any of the eight fair dealing purposes - news reporting, research, private study, education, parody, satire, criticism, or review. The most important purposes for the university are research, private study and education.
The Fair Dealing Policy defines a short excerpt as follows:
4. A short excerpt means:
When considering copying or communicating a short excerpt under the Fair Dealing Policy, the most advantageous of sections 4(a) through (g) may be selected. For example, if one chapter of a book is more than 10% of the book, the one chapter may be copied under the Fair Dealing Policy. If more than one figure is selected for copying, the number of figures selected that may be copied under the Fair Dealing Policy cannot exceed 10% of the book. For example, if a book is 200 pages long, up to 20 pages may be copied under the Fair Dealing Policy.
Add this statement or link to this page whenever you upload something under fair dealing.
This copy was provided under the Fair Dealing provisions of the Canadian Copyright Act (C-42) for research, private study, education, parody, satire, criticism, review, or news reporting. If used for the purpose of review, criticism or news reporting, the source and the name of the author must be mentioned. The use of this copy for any other purpose may require the permission of the copyright owner. Any other use may be an infringement of copyright.
The criteria for determining fair dealing are not cut and dried. Applying them requires consideration of the character of the dealing. For this reason, the section below quotes extensively from the relevant court decisions and gives examples in an attempt to aid faculty, students, and staff in determining whether a given use is fair dealing. Note that it is not necessary to show that copying under fair dealing meets all six of the criteria below.
The six criteria established by C-42 and the Supreme Court of Canada for determining fair dealing are:
1. The purpose of the dealing — it must be for the purpose of research, private study, education, parody, satire, criticism, review, or news reporting.
In the CCH v Law Society of Upper Canada (CCH) case, the court used a broad definition of "research": "Under s. 29 of the Copyright Act, fair dealing for the purpose of research or private study does not infringe copyright. 'Research' must be given a large and liberal interpretation in order to ensure that users’ rights are not unduly constrained, and is not limited to non-commercial or private contexts." The Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) (AC) case established that even if the copying is done by the teacher on behalf of students, it still qualifies as "research" and "private study".
2. The character of the dealing – this refers to how the material is used. For example, making multiple copies of a work and/or distributing it widely, e.g., on a non-password protected website, would probably not be considered fair dealing. Whereas, a small part of a book or journal, placed on a password protected site where access is limited to students enrolled in a class, would more likely be considered fair.
3. The amount of the dealing — In the CCH case, the court states: " If the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement." In cases where the amount of dealing is more than a trivial amount, the following criteria need to be considered. For example, using a single photograph would probably be insubstantial for research purposes, particularly if it was impossible to do the research with less than the full image. Copying a complete academic article would also probably be fair. However, including the full text of a short story that is being reviewed would probably not be fair.
4. Alternatives to the Dealing –
5. The nature of the work – Academic articles are written to be quoted and referenced in other works. However, workbooks or commercial newsletters are written to be sold, so reproducing substantial parts of them would likely not be considered fair.
6. The effect of the dealing on the work – In the CCH case, the court states: "If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair." For example, providing a high quality digital copy of a song or image might damage the owners' ability to sell their work, in which case the uses may not be fair.
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