Fair Dealing

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What is Fair Dealing?

 

 
 
The fair dealing provision in the Copyright Act allows for the use of copyright protected works without copyright owner permission or royalty payment because the context of the copying is considered to be “fair” in the circumstances. The Copyright Act itself does not define what is “fair”; however, the Supreme Court does.  
 
In its ruling of the CCH Canadian Ltd. v. Law Society of Upper Canada case (2004), the Supreme Court of Canada stated:
 
“The Copyright Act does not define what will be fair; whether something is fair is a question of fact and depends on the facts of each case” (para. 52).
 
“The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right.  In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively” (para. 48).
 
To determine whether a particular use meets the fair dealing standard, the Court established a two-part test.  
 
First, the “dealing” must be for a purpose stated in the Copyright Act: research, private study, education, parody, satire, criticism, review, or news reporting.
 
Second, if it does qualify under one of these categories, the dealing must also be “fair”. The court identified six factors to consider to gauge the fairness of the dealing:
 
Purpose - Examine the purpose in more detail; even though it satisfies the “dealing” test, there may be other factors. For example, research for a commercial purpose tends to be less fair than for a non-commercial purpose.
 
Character - Consider the number of copies made, but also the custom or practice in the particular trade or industry.
 
Amount - Focus not only on quantity, but also on substantiality. How much of the work was used? AND How important or substantial was the portion used? 
 
Alternatives - Was a "non-copyrighted equivalent of the work" available? Did you need to use the work you used for your purpose?
 
Nature - Consider the publicity and exposure of the work as a result of the use. Wider public dissemination is one of the goals of copyright law, so the dealing may be more fair if it leads to exposure of an unpublished work. Also consider confidentiality; the dealing would be less fair if the work was confidential.
 
Effect - Does the dealing affect the market of the original work? Consider all the factors; a dealing that creates competition is not necessarily unfair. For example, a legitimate criticism that only takes what it needs for its purpose may be considered a fair dealing, even though it may affect the market of the original.
  
 
How does this apply to uses at StFX? See the StFX Fair Dealing Guidelines.