Sometimes you can use works or parts of works without permission or payment of a royalty under the fair dealing provision of the Copyright Act.
Copyright exists to serve the public interest. In addition to providing exclusive rights to creators to encourage the creation and dissemination of works, copyright provides user rights as well. The fair dealing provision in the Copyright Act is the key mechanism to provide balance between creator and user rights.
The Copyright Act states that fair dealing for the purposes of research or private study, criticism, review, news reporting, education, parody and satire does not infringe copyright. If copying or communication is done for one of these purposes and qualifies as fair, it does not infringe copyright. The Copyright Act purposely refuses to set clear definitions of what constitutes fair dealing. This provides flexibility to adapt to many situations and new ways of accessing and using works.
Since 2004, however, the Supreme Court of Canada has issued a number of rulings that have helped clarify the meaning and reach of fair dealing. The key themes have been that the fair dealing purposes must not be interpreted restrictively and must be given a broad and liberal reading. Research, for example, need not be a traditional creative or scholarly endeavour, but can apply to someone copying content simply out of an interest in the subject matter. This means that fair dealing can be applied by all users and in many contexts.
Landmark decisions by the Supreme Court on a set of copyright cases as well as amendments to the Copyright Act in 2012 confirm that fair dealing applies broadly in the educational sector. The 2012 rulings reinforce the fair dealing approach first outlined by the court in the 2004 CCH decision and provide additional clarity and examples of how fair dealing may be applied. The result is to recognize that copies of copyrighted works provided for or communicated to students by a teacher or instructor can qualify under fair dealing. The court also addressed the issue of technological neutrality, stating that fair dealing applies equally to paper and digital content. In the educational context, this means that fair dealing copies may be distributed to students digitally, such as through Blackboard and eReserves. This supports the use of new technologies and the Internet to communicate copies of works.
While these developments clearly support the educational use of works under fair dealing, it is not the intention of the fair dealing provisions to discourage the commercial production of learning materials and tools. Fair dealing does not apply if the copying or communication of a work significantly affects the market for a work. In order to ensure that works are used fairly, safeguards are applied. These can include limiting the portion copied from a single work or limiting the number of people included in a distribution of a work.
In 2004, the Canadian Supreme Court issued a landmark copyright decision, CCH v. Law Society of Upper Canada(2004)[1 S.C.R. 339], that provided a significant clarification of fair dealing. The court outlined six non-exhaustive criteria to assist in determining whether a use of (or dealing with) a work is fair. Each of the six criteria must be considered when making a fair dealing assessment and no one factor can be considered alone or is predominant in an assessment of fairness. The court has stated that the simple availablity of a work for sale or the availability of a licence does not automatically mean that a use will not qualify as fair dealing.
The ruling states:
"It is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. 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. ... 'User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation."
The ruling outlined six principle criteria for evaluating fair dealing:
The Purpose of the Dealing Is it for research, private study, criticism, review, news reporting, education, parody or satire? It expresses that "these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users' rights."
The Character of the Dealing How were the works dealt with? Was there a single copy or were multiple copies made? Were these copies distributed widely or to a limited group of people? Was the copy destroyed after its purpose was accomplished? What are the normal practices of the industry?
The Amount of the Dealing How much of the work was used? What was the importance of the infringed work? Quoting trivial amounts may alone sufficiently establish fair dealing. In some cases even quoting the entire work may be fair dealing.
Alternatives to the Dealing Was a "non-copyrighted equivalent of the work" available to the user? Could the work have been properly criticized without being copied?
The Nature of the Work Copying from a work that has never been published could be more fair than from a published work "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."
Effect of the Dealing on the Work Is it likely to affect the market of the original work? "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." A statement that a dealing infringes may not be sufficient, but evidence will often be required.
“These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing. In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair”.
The MacEwan University Fair Dealing Guidelines provide guidance on the copying and communication by faculty and staff of copyright-protected works for students. These Guidelines give faculty and staff clear options to provide course materials and remain compliant with copyright law.
The Canadian Association of University Teachers (CAUT) has issued an excellent fair dealing overview in the CAUT Guidelines for the Use of Copyrighted Material.