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Copyright & You

Fair Dealing

Fair dealing is a concept embedded in Canadian copyright law that recognizes that certain uses of copyright-protected works do not require permission from the copyright holder. It applies to all types of works and is subject to limits--tests of fairness must be applied.

Fair Dealing allows limited and non-commercial copying or use of a work for the purposes of research or private study, criticism, review and news reporting, education, parody or satire. 

Under previous law there was no mention of the purpose of education or teaching. Under the Copyright Modernization Act, which came into force in 2013, Fair Dealing was redefined to include new categories of education, parody or satire: “Fair Dealing for the purpose of research, private study, education, parody or satire does not infringe copyright” (Section 29). Criticism and review, and news reporting are retained in a separate section.

Education is not defined, but is likely to be limited to classroom or distance courses through a course management system.

Legal counsel for the Association of Canadian Community Colleges (ACCC) has drafted a Fair Dealing Policy.  CAUT (Canadian Associaton of University Teachers) has also published Guidelines for the Use of Copyrighted Material (February 2013). See below.
 

The Copyright Act provides exceptions which allow copying, in paper or electronic form,  under certain circumstances for universities or persons acting under the authority of a university. One such exception is the "fair dealing exception".

Under Fair Dealing, it is believed that instructors and staff members in non-profit educational institutions 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 and parody.

A single copy of a short excerpt (see definitions of short excerpt below) from a copyright-protected work may be provided or communicated to each student enrolled in a a class or course at Kwantlen:

(a) as a class handout (includes emailing to students)

(b) as a posting to a learning or course management system that is password protected or otherwise restricted to, and accessible only by, students in the  specific course, unit or program; or

(c) as part of a coursepack

 

A short excerpt means:

(a) up to 10% of a copyright-protected work (including a literary work, musical score, sound recording, and an audiovisual work)

(b) one chapter from a book

(c) a single article from a periodical issue

(d) an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart and plan) from a copyright-protected Work containing other artistic works

(e) an entire newspaper article or page

(f) an entire single poem or musical score from a copyright-protected work containing other poems or musical scores;

(g) an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work

 

Use one of (a)-(g) whichever is most most useful or appropriate. For example, if a you wish to copy one chapter of a book, the total pages copied may exceed 10% of the book. If you wish to copy 100 pages out of a 1,000-page book (10%), that 100 pages could be made up of multiple chapters

Note: 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. All limits are based on a semester time frame. You may not copy the percentages allowed on a weekly basis.

Note: when using any paper or scanned/electronic copy it is standard academic practice to mention the source and author of the work. When copying or communicating short excerpts from a copyright-protected work for the purpose of news reporting, criticism or review, you should mention the source and, if given in the source, the name of the author or creator of the work.

Note: a copyright-protected work includes films, music, artistic works as well as books.

Tests of fairness must be applied.  In the CCH Canadian Ltd. v. Law Society of Upper Canada [2004] decision, the Supreme Court proposed the following criteria for evaluating whether a dealing is fair:

Criteria Examples Satisfies the criteria
     
The purpose of the dealing Is the copying for one of the following purposes: education, research, private study, criticism or review,  news reporting, pariody or satire? Educational use of a copyright-protected work will qualify as an allowable purpose
  Is the copy meant to replace your course text? If not, then the dealing would likely be considered fair
The character of the dealing How broadly will the work be distributed?  Will it be accessible only to registered students?

 

Making a single copy for an individual's study or research, making multiple copies for classroom use & posting a digital copy to a password protected course management site will likely qualify as fair.

If copying is for wide or external distibution, permission from the copyright holder would likely be requried.

     
The amount of the dealing How much is being copied?  If the copying is limited to 'short excerpts' this will likely qualify as fair.
     
The nature of the work Is the work published and widely available?  unpublished?

 

If the work is unpublished, confidential or restricted to a limited audience (e.g. pay-per-view or subscription based), then permission from the copyright owner is likely required.

     
Available alternatives to the dealing Is there a non-copyrighted alternative?  Is the work or a similar work available on the Library databases?  
The effect of the dealing on the work Will the copying undermine the value of the work? The market for the publisher's work should not decrease as a result of copies being made.

Fair Dealing is very context-dependent, so only you can determine if your use is fair.  Athabasca University of has created an interactive  Fair Dealing Analysis Tool  that is designed to guide you through the various stages of a fair dealing analysis, posing a series of questions about the fairness of each factor and providing you with an overall determination if your proposed use could be considered 'fair'.  It should not be interpreted as legal advice.

Remember that no single factor is decisive of fair dealing, and on any given factor, you may find that some aspects of your proposed use favor fair dealing, while others simultaneously "weigh against" fair dealing. There also may be other relevant considerations that do not appear in this general-purpose tool!  Many considerations are relevant, and only by looking at the whole picture, across all the issues, can you make a reasonable guess about whether your use is fair or not.

If you find a work that you want to copy and distribute, and if that work is not either CC-licensed or in the public domain, then you can use this tool to help determine whether the intended copying would qualify as fair dealing. If the tool leads you to the conclusion that fair dealing would probably not apply, then you would need to seek permission from the copyright owner or choose an alternative resource.

On July 12, 2012, the Supreme Court of Canada simultaneously released its decisions in five cases, cases which had been heard together in a series of oral hearings in December 2011:

 

The decisions, taken together, are lengthy and detailed and their impact will become clear over time.  However, the decisions do provide guidance and clarity in the application of fair dealing.  They also indicate that teachers/instructors in a classroom setting can provide one copy of a short excerpt of a copyright protected work for each student in their class (face to face or online).

 

Links:

Site that provides links to the cases and a variety of reports and commentary:

Sam Trosow provides a good overview of the potential implication

IP Osgoode: The Copyright Pentology

 

What's the difference between "fair dealing" and "fair use"? Fair dealing is the Canadian exception to the copyright owner's exclusive rights, similar in many ways to the United States' "fair use" limitations to exclusive rights. They aren't exactly the same though!

Use that occurs in Canada is governed by Canada's Copyright Act.  A use that takes place in Canada may be deemed not to infringe copyright if the use is determined fair under the Act's fair dealing exception.  

A use that takes place in the United States may be deemed not to infringe copyright if the use is determined fair under the doctrine of fair use in U.S. Copyright Law. The fair use exception in U.S. copyright law is not the equivalent of fair dealing in Canadian law. It is important to make sure that you consider the Canadian law and aren’t relying on U.S. information.

  • U.S. Copyright Office
    The doctrine of fair use is a limitation in U.S. copyright law which under certain circumstances allows for copyrighted works to be used without a license from the copyright owner.
  • Fair Dealing, compared to Fair Use  
    Meera Nair compares Fair Dealing to Fair Use; she points out similarities and differences.
  • Fair Use 2.0: The Rebirth of Fair Dealing in Canada
    • Ariel Katz's essay, chapter 4 of the Copyright Pentalogy. Katz, A. (2013). Fair use 2.0: The rebirth of fair dealing in Canada. In M. Geist (Ed.), The copyright pentalogy: How the Supreme Court of Canada shook the foundations of Canadian copyright law (pp. 93-156). Ottawa: University of Ottawa Press.
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