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Copyright at MHC

Fair Dealing

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What is Fair Dealing?

Fair dealing is for everyone.  You probably make use of fair dealing everyday without even realizing it, whether emailing a news article to a friend, using a clip from a song, using a copyrighted image on social media, or quoting passages from a book when writing an essay.  Activities such as these are not considered to be copyright infringement - in fact, the ability for users to make copies for specific purposes is an integral part of the Canadian Copyright Act.

The fair dealing provision in the Copyright Act permits use of a copyright-protected work without permission from the copyright owner or the payment of copyright royalties.  To qualify for fair dealing, two tests must be passed.


What is the Purpose of Fair Dealing?

Fair dealing recognizes that certain uses of copyright protected works are beneficial for society.  By placing limits on instances where copyright owners can require payment, fair dealing leads innovation, to the creation of new works and new scholarship.  The Supreme Court of Canada increasingly refers to copyright as providing a balance between the rights of users and of copyright owners.

Fair dealing has a large, positive impact, including for:

  • Educators and students at all levels,
  • Creative professionals (journalists, authors, filmmakers, musicians, etc),
  • Individuals who want to use, copy, or share portions of copyright-protected works in their daily lives.

Fair Dealing Analysis

A fair dealing analysis can help you identify if your proposed use may be fair.  It consists of two parts.

  • 1.  First, the "dealing" must be for a purpose stated in the Copyright Act: research, private study, criticism, review, news reporting, education, satire, or parody.  Educational use of a copyright-protected work passes the first test.
  • 2.  The second test is that the "dealing" must be fair.  In landmark court decisions in 2004 and 2012, the Supreme Court of Canada provided guidance as to what this test means in educational institutions.
    • Apply the six non-exhaustive factors identified in Supreme Court decisions to help you determine the degree to which you use of material may be considered fair based on past case law and current practices:
      • Purpose - What is the goal of your copying and how will you use the material?
      • Character - Are you making copies?  How many?  Will they be distributed?  Will you destroy the copy after use?
      • Amount - How much will you copy?  Consider both the quantitative amount and how it relates to the work as a whole.
      • Alternatives - Are there practical alternatives to making a copy?  Non-copyrighted equivalent?
      • Nature - Is the work published or unpublished?  How is this work typically used?  Scholarly?  Private or confidential?
      • Effect - Will your use compete with the original on the commercial market?
    • Note that your use does not have to meet every one of the factors in order to be fair, and no factor is considered to be necessarily more important than any other.  It all depends on circumstances.  Other factors may also be worth considering based on your situation.

Guidelines

  • Teachers, instructors, professors, and staff members in non-profit colleges and universities may communicate and reproduce, in paper or electronic form, short excerpts from a copyright-protected work for the purposes of research, private study, criticism, review, news reporting, education, satire, or parody.
  • Copying or communicating short excerpt from a copyright-protected work under fair dealing policy for news reporting, criticism, or review should mention the source and, if given in the source, the name or creator of the work.
  • A copy of a short excerpt from a copyright-protected work may be provided or communicated to each student enrolled in a class or course:
    • as a class handout
    • as a posting to Blackboard (or an LMS that is password protected)
    • as part of a coursepack
  • A short excerpt means:
    • up to 10% of a copyright-protected work (including a literary work, musical score, sound recording, or audiovisual work)
    • one chapter of a book
    • a single article from a periodical
    • an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart, or plan) from a copyright protected work containing other artistic works
    • an entire newspaper article or page
    • and entire single poem or musical score from a copyright-protected work containing other poems or musical scores
    • an entire entry from an encyclopedia, annotated bibliography, dictionary, or similar reference work provided that in each case, no more of the work is copied than is required in order to achieve the allowable purpose
  • Copying or communicating multiple short excerpts from the same copyright-protected work, with the intention of copying or communicating substantially the entire work, is prohibited.

 

Attribution:                             This page has been adapted for MHC from Saint Mary's University Copyright Fair Dealing and Educational Exceptions webpage which was adapted from Universities Canada - Fair Dealing Policy for Universities and Fair Dealing Canada's About Fair Dealing webpage.  All content is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike International license.

Fair Dealing Myths and Facts

Relevant Supreme Court Decisions

  • Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), [2012] 2 S.C.R 345, 2012 SCC 37 - see decision
  • Society of Composers, Authors, and Music Publishers of Canada (SOCAN) v. Bell Canada, [2012] 2 S.C.R. 326, 2012 SCC 35 - see decision
  • CCH Canada Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13 - see decision
  • Theberge v. Galerie d'Art du Petit Champlain inc., [2002] 2 S.C.R. 336, 2002 SCC 34 - see decision