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Copyright Guide: Fair Dealing

What is Fair Dealing?

Fair dealing in Canada, as defined in the Canadian Copyright Act, is use of material with attribution for the pupose of research, private study, education, parody, satire, criticism, review, and/or news reporting. 

When determining what is "fair", the precedent setting user right case in 2004 CCH Canadian Ltd. v. the Law Society of Upper Canada outlined six principles to consider: 

1) the purpose of the copying (research? private study? criticism? commercial purposes? educational use? parody or satire?)
2) the character of the copying (is the plan to make a single copy? multiple copies? will the copy be destroyed when its use is completed?)
3) the amount of the work to be copied and the importance of the work (will the copying be a significant part of the work?)
4) alternatives to the work to be copied (is there a non-copyrighted equivalent available?)
5) the nature of the work (is it published? unpublished? confidential?)
6) the effect of the copying on the work (will it compete with the market of the original work?)

Additionally, or for added clarification, and as noted in CAUT Guidelines for the Use of Copyrighted Material (February 2013): 

  • fair dealing applies regardless of format, e.g. paper or digital works,
  • making a single copy from a work for each member of a defined group is likely to be fair (e.g. class handouts),
  • copying more than 10% of a work MAY be fair depending on the circumstances (e.g., copying is less likely to be fair the greater the percentage of the entire work is composed of the following parts), but generally it is likely fair to:
    1. copy an entire chapter from a book; 
    2. copy an entire article from a periodical;
    3. copy an entire short story, play, poem or essay from a book or periodical;
    4. copy an entire entry from an encyclopedia, dictionary, annotated bibliography, or similar reference book;
    5. copy an entire reproduction of an artisitc work from a book or periodical; and
    6. copy a single musical score from a book or periodical. 
  • copying is more likely to be fair if it is done for a restricted audience, e.g., posting copied works to a secure system that is password protected,
  • the nature of a work contributes to the determination of the fairness of copying, for example:
    1. an academic article lends itself to a fair dealing analysis, but
    2. a proprietary workbook, work card, assignment sheet, test, exam paper, business case, or a course manual are much less likely to lend themselves to a fair dealing analysis, keeping in mind that as a general rule, copying should not substitute for the purchase of learning materials.
  • reproduction should only be done from a lawful copy of the work,
  • copies should reference the name of the creator (e.g., author or artist), the title of the publication from which the copy was made, and the name of the publisher (see sections 29.1 and 29.2 of the Copyright Act for attribution requirements for purposes of criticism, review and news reporting), 
  • copying fees must be no greater than the actual cost of making and delivering the copy,
  • individuals can make fair dealing copies on behalf of others, e.g. students may make personal copies for other students, or a librarian may make a personal copy for a researcher, and
  • copying articles, chapters, or small excerpts to put on reserve for members of a class is likely to be fair, but systematic and extensive copying of material from a textbook for a large class is likely to be unfair.

                        

Fair Dealing versus Fair Use

Supreme Court Decisions Involving Copyright & Fair Dealing