Copyright

Fair dealing permits the use of a copyright-protected work without permission from the copyright owner or the payment of copyright royalties. The fair dealing exception in the Copyright Act allows the use of other people's copyright-protected works for the purposes of research, private study, criticism, review, news reporting, education, satire, or parody, providing the use is "fair."

To qualify for fair dealing, two tests must be passed:

• 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.
• the dealing must be "fair." In landmark decisions in 2004 and 2012, the Supreme Court of Canada provided guidance as to what this test means in schools and post-secondary educational institutions. 

These guidelines apply fair dealing in non-profit K-12 schools and post-secondary educational institutions and provide reasonable safeguards for the owners of copyright-protected works in accordance with the Copyright Act and the Supreme Court decisions.

Full detail of the educational exceptions can be viewed in sections 29.4 to 29.9 of the Copyright Act.

Whether the use is "fair" will depend on the circumstances. Six Factor Test to help determine if the use is fair:

• the purpose of the dealing (Is it commercial or research / educational?)
• the amount of the dealing (How much was copied?)
• the character of the dealing (What was done with the work? Was it an isolated use or an ongoing, repetitive use? How widely was it distributed?)
• alternatives to the dealing (Was the work necessary for the end result? Could the purpose have been achieved without using the work?)
• the nature of the work (Is there a public interest in its dissemination? Was it previously unpublished?)
• the effect of the dealing on the original work (Does the use compete with the market of the original work?)

It is not necessary that your use meet every one of these factors in order to be fair and no one factor is determinative by itself. In assessing whether your use is fair, a court would look at the factors as a whole to determine if, on balance, your use is fair.

The Supreme Court of Canada's 2004 ruling provided clarification via six factors to consider when determining whether use is fair. See CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13, paragraphs 53-59. 

1.     Teachers, instructors, professors 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.

2.     Copying or communicating short excerpts from a copyright-protected work under these Fair Dealing Guidelines for the purpose of news reporting, criticism or review should mention the source and, if given in the source, the name of the author or creator of the work.

3.     A single copy of a short excerpt from a copyright-protected work may be provided or communicated to each student enrolled in a class or course:

a.     as a class handout;

b.     as a posting to a learning- or course-management system that is password protected or otherwise restricted to students of a school or post-secondary educational institution;

c.     as part of a course pack.

4.     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;

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.

5.     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.

6.     Copying or communicating that exceeds the limits in these Fair Dealing Guidelines may be referred to a supervisor or other person designated by the educational institution for evaluation. An evaluation of whether the proposed copying or communication is permitted under fair dealing will be made based on all relevant circumstances.

7.     Any fee charged by the educational institution for communicating or copying a short excerpt from a copyright-protected work must be intended to cover only the costs of the institution, including overhead costs.

The tools linked below can help you determine if fair dealing applies to your use of a work. If you have any questions about your use of a work, please contact your Subject Librarian or email copyright@rdpolytech.ca.

"Applying Fair Dealing" is an Opening Up Copyright module created by the University of Alberta (CC-BY 4.0).