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:
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.
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,  1 S.C.R. 339, 2004 SCC 13 recommends that the following six factors be used to assess fair dealing:
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.
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.
Yes! Fair Dealing does NOT mean you can copy whatever you want. The following circumstances tend to create difficulties for faculty, staff and students:
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.
If, after browsing this guide, you still have questions or require additional information please contact MRUcopyright@mtroyal.ca, or 403.440.6618.
Student drop-in office hours on the main floor of the RLLC will resume in September, 2019.