Fair Dealing

"Fair Dealing" is a statutory right that is an important component of users' rights in Canadian copyright law, allowing for the reproduction and use of copyright-protected works for certain purposes without requiring permission, provided that use/dealing is "fair".

The purpose of fair dealing is to balance the exclusive right of copyright owners with the rights of users to use these works in the public interest. The Supreme Court of Canada has articulated that fair dealing is more than a simple defence, but rather is an integral part of Canada's Copyright Act. When fair dealing requirements are met there is no need to look further to more specific exceptions in the Copyright Act nor for any other permission.

To consider how fair dealing is applied at the University of Alberta, it is necessary to distinguish between personal copying and copying for University purposes. The responsibility for determining fair dealing in the case of personal copying is generally left to the individual user. Faculty and staff copying on behalf of the institution follow the UAPPOL Use of Copyright Materials Policy and Procedure, as well as institutional fair dealing guidelines.

Fair Dealing for University Purposes

Due to the subjectivity of the legal test for fair dealing, and to provide a standardized recommendation about what may be copied under this exception, the University has established quantitative guidelines for employees when copying for University activities. University employees must ensure the amount they copy does not exceed the limits outlined in the University of Alberta Fair Dealing Guidelines.

The purpose of these guidelines is to provide a simple and straightforward approach to making determinations of the application of the fair dealing exception in particular circumstances. While these guidelines are not intended to be a replacement for the full analysis outlined by the Supreme Court of Canada, use of the guidelines is expected to yield a result consistent with such a full analysis in the vast majority of applicable cases.

These guidelines apply to all reproductions of copyright-protected works under the University's Use of Copyright Materials Policy and Procedure, i.e., institutional copying. They are not intended to apply to reproductions made outside the scope of that Policy, i.e., personal or private copying.

These guidelines are not intended to limit reproductions of works in which the University holds the copyright nor reproductions made in accordance with the terms of licence agreements that apply to specific resources.

Fair Dealing for Personal Purposes

The fair dealing exception allows any person to undertake an analysis to assess the fairness of their dealing. The Copyright Act does not define what is fair, rather fairness is assessed based on the facts of each case. Assessing whether your use of a copyright-protected work qualifies as fair dealing involves an analysis of two broad, subjective, and intentionally ambiguous legal tests.

The first legal test considers your purpose for using the work, and the second test will help you assess the "fairness" of your dealing. If either test fails, you will need to contact the copyright owner for permission prior to using the material.

TEST #1: PURPOSE

Is the dealing for an allowable purpose stated in the Copyright Act?

The purpose of the dealing will be fair if it is for one of the allowable purposes under the Copyright Act, namely: research, private study, education, parody, satire, criticism, review, or news reporting.

These allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users' rights. For example, research interpreted broadly may apply to research for commercial purposes as well as research for non-profit or noncommercial uses; the purpose of education is not limited to educational institutions only.

Purposes (as per s. 29 of the Copyright Act.)

TEST #2: FAIRNESS FACTORS

Is the dealing "fair"?

The second test is an analysis to assess the "fairness" of your dealing in terms of manner and amount used. The Supreme Court of Canada has defined six factors to consider when assessing fairness.

Factors (excerpted from CCH v. LAW SOCIETY OF UPPER CANADA [2004] 1 S.C.R. 339.)

The six criteria to consider are: purpose, character, amount, nature, effect, and alternatives to the dealing.

1. The Purpose of the Dealing

   Courts should attempt to make an objective assessment of the user's real purpose or motive in using the copyrighted work. Some dealings, even if for an allowable purpose, may be more or less fair than others. For example, research done for commercial purposes may not be as fair as research done for charitable purposes.

2. The Character of the Dealing

   If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing. If the copy of the work is destroyed after it is used for its specific intended purpose, this may also favour a finding of fairness.

3. The Amount of the Dealing

   Both the amount of the dealing and importance of the work allegedly infringed should be considered in assessing fairness. The quantity of the work taken will not be determinative of fairness, but it can help in the determination. It may be possible to deal fairly with a whole work. The amount taken may also be more or less fair depending on the purpose. For example, for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision. However, if a work of literature is copied for the purpose of criticism, it will not likely be fair to include a full copy of the work in the critique.

4. Alternatives to the Dealing

   Alternatives to dealing with the infringed work may affect the determination of fairness. If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court. It may also be useful for courts to attempt to determine whether the dealing was reasonably necessary to achieve the ultimate purpose. For example, if a criticism would be equally effective if it did not actually reproduce the copyrighted work it was criticizing, this may weigh against a finding of fairness.

5. The Nature of the Work

   The nature of the work in question should also be considered by courts assessing whether a dealing is fair. Although certainly not determinative, if a work has not been published, the dealing may be more fair in that its reproduction with acknowledgement could lead to a wider public dissemination of the work - one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair.

6. Effect of the Dealing on the Work

   The effect of the dealing on the work is another factor warranting consideration when courts are determining whether a dealing is fair. If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair. Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair.

Tips for Conducting a Fair Dealing Analysis

• When assessing the six fairness factors, envision your answers not in terms of "yes" or "no", but rather along a gradient sliding scale where on one side your use may be "more fair" and on the other "less fair."

• No one factor is more important than another, and no one answer will render your dealing fair or unfair. Consider all factors together and if the majority of your answers are on the "more fair" side of the scale, you may decide you are satisfied that you are within fair dealing and choose to proceed with inclusion of the material in your work.

• If you are using copyright-protected material as an example and leaving it out will not compromise the integrity of your research, then your fair dealing argument may be less fair.

• You have a stronger argument for fair dealing if the inclusion of copyright-protected material is tied to a critical analysis or review of the content itself. The justification for including excerpts of the material is stronger in a case where a reader might reasonably need to see the relevant portions of the content to understand your analysis or review.

• Your reasons for including different excerpts in your work may vary, so undertake a separate fair dealing analysis for each non-original excerpt you wish to include.

• If the content you wish to include can be substituted with a non-copyright-protected equivalent without affecting the integrity of your research, then substitute the copyright-protected material for a non-copyright-protected or open-licensed equivalent.

• When considering an "alternative" to your dealing, you may discover that a comparable non-copyright-protected or open-licensed excerpt cannot be found, or your research is dependent on use of one specific excerpt and cannot be substituted. In both cases, as a result of this lack of reasonably available alternatives, your use of the copyright-protected material can be considered "more fair" and your fair dealing argument easier to justify.

• If you decide to redraw or make trivial changes to the material in an effort to avoid copyright issues, doing so does not protect you from an infringement claim. Rather, work through the fair dealing analysis to determine if your use qualifies and if it does not, ask the copyright owner for permission.

• Avoid using multiple excerpts from the same work; instead try using as many sources as possible when sourcing content.

Mandatory Citation for Criticism, Review, or News Reporting

If you are using a work for the purposes of criticism, review or news reporting, the Copyright Act (ss. 29.1 and 29.2) requires that you mention the following: