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Copyright Information: Fair Dealing

What is Fair Dealing?

Fair dealing is a user right contained in the Copyright Act. Fair dealing allows you to copy from a copyrighted work, without the copyright owner's permission, if:

  • the copy is for one of these purposes: research, private study, education, parody, satire, criticism, review or news reporting; and
  • your dealing (use) is fair.

Neither the Copyright Act, nor the decisions of the courts interpreting fair dealing set out exactly what is fair in any particular instance. Rather, to determine whether a particular copy qualifies as a fair dealing, one must consider all of the relevant factors and previous court decisions.

 

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What are the relevant factors in a Fair Dealing Analysis?

Fair dealing is a key exception in the Copyright Act in Canada. This exception attempts to balance user and creator rights by allowing limited copying under specific circumstances, including research, private study, education, parody, satire, review, criticism and in some cases news reporting. Fair dealing is not defined in a prescriptive or detailed manner in the Act itself but rather relies on judges to interpret each situation on case by case basis.

The Supreme Court of Canada decision CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13 recommends that the following six factors be used to assess fair dealing:

  • the purpose of the proposed copying, including whether it is for research, private study, education, parody or satire, criticism, review or news reporting;
  • the character of the proposed copying, including whether it involves single or multiple copies, and whether the copy is destroyed after it is used for its specific intended purpose;
  • the amount of the dealing from the individual user's perspective, including the proportion of the work which is proposed to be copied and the importance of the excerpt in relation to the entire work;
  • alternatives to copying the work, including whether there is a non-copyrighted equivalent available;
  • the nature of the work, including whether it is published or unpublished; and
  • the effect of the copying on the work, including whether the copy will compete with the commercial market of the original work.

 

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This is all a bit confusing.  Is there a set of guidelines or something that I can follow instead?

Yes!  The MRU Fair Dealing Guidelines are designed to help you.  Having considered the six criteria that have been used by the courts, the MRU Fair Dealing Guidelines are designed to clarify how fair dealing applies to certain copying at MRU, and to provide reasonable safeguards for the copyright holders of copyright-protected works, in accordance with Canadian copyright law.

 

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Questions?

What is a "substantial part" of a work?

The term “substantial part” is not defined in the Copyright Act. The courts have held that both the quality and the quantity of what is copied must be considered, with the quality being more important than the quantity. In considering what constitutes a substantial part, a court will consider whether the alleged infringer has reproduced the distinct traits of the original work.  See sections 3(1) and 27(1) of the Copyright Act for the legislative provisions.

 

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Are there any limitations to what I can copy under Fair Dealing?

Yes! Fair Dealing does NOT mean you can copy whatever you want. The following circumstances tend to create difficulties for faculty, staff and students:

  • Fair Dealing - keep in mind that Mount Royal University's Fair Dealing Guidelines permit the copying of up to 10% of a copyright protected work, or certain portions of copyright protected works (for more information on Fair Dealing Guidelines, click here).
  • Websites - you are bound by the terms of use of a website.  Some terms of use do not allow the use of website material without first obtaining written permission.  If you don't like the terms of use, don't use material from that website!  The website's terms of use supersede what you can do under Fair Dealing.  Check the website for a "terms of use", "copyright", "legal" or "more info" button.  If the website does not specify what you can or cannot do, then best practice is to seek permission from the website's author.
  • Images (including photographs, graphs, charts, diagrams, etc.) - Sometimes the images that appear on websites, in articles, or in textbooks are subject to a contract that restricts further use or further distribution.  Also, the copyright owner in the website, article, or textbook may not be the copyright owner in the image.
  • YouTube - be mindful of infringing copies posted to YouTube.  If it seems as though the poster likely does not have authority to post that video, then you should not use it.
  • Digital Locks - you should not circumvent a digital lock such as a login of any sort to access material.

 

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Can I exercise the fair dealing exception to make copies for students?

Teachers can exercise the fair dealing exception to make and distribute copies to students, as long as the making of those copies would otherwise be considered "fair" when assessed in light of the six factors listed above.  

This is a recent change in Canadian copyright law. The Supreme Court of Canada in Alberta (Education) v. Canadian Copyright Licensing Agency, 2012 SCC 37, ruled that fair dealing is a user's right, and the relevant perspective when considering the purpose of the copying is that of the user of the copy. The Court stated that in the educational context, the user of the copy is the student, who is using it for the purposes of research and private study. This overturned a previous court decision which had held that teacher's could not exercise the fair dealing exception to make copies for students. The decision was made prior to the addition of "education" to the list of circumstances in which the fair dealing exception could apply.

 

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Attribution

Content on this page has been copied and adapted from the "Copyright at UBC" website, created by the University of British Columbia under a CC BY 4.0 International License.

Have a copyright question?

If, after browsing this guide, you still have questions or require additional information please contact MRUcopyright@mtroyal.ca, or 403.440.6618.

The Copyright Advisor is also available in EL1132 for drop-in office hours:

  • Tues: 9:00 - 10:30 am
  • Thurs: 2:30 - 4:00 pm