Fair dealing is a provision in the Canadian Copyright Act, similar to fair use in the U.S. It allows the copying or communication (digital distribution) of a substantial portion of a copyrighted work, or in some cases an entire work, without the permission of the copyright owner. Fair dealing applies to many uses of works in the educational context.
Fair dealing for the purposes of research, private study, criticism, review, news reporting, education, parody, and satire is not infringement of copyright. If the copying or communication is done for one or more of these purposes and qualifies as fair, it does not infringe copyright. Fair dealing is an open-ended and flexible provision. The Supreme Court has instructed that the above purposes must be given a broad and liberal interpretation. That means that fair dealing applies to all users of copyrighted works and in many contexts.
The determination of the fairness is dependent on an assessment of all the relevant factors in a given situation and the application of the six-factor fairness test provided by the Supreme Court in 2004. All six factors need to be applied. The assessment takes into account the overall fairness or unfairness of a dealing (or use) with no one factor deciding the outcome. Some factors may even tend towards unfairness and still allow a finding of fairness. Additional information beyond these factors may help determine the outcome as well.
The factors are as follows:
The Purpose of the Dealing: Is the dealing for one of the required purposes? Is the use for a profit or a non-profit educational purpose? Is it for entertainment purposes? Is it to encourage discussion and engagement, such as in a blog post?
The Character of the Dealing: Was a single copy made or were multiple copies made? Were copies widely distributed or posted online, or limited to a small group?
The Amount of the Dealing: How much of the work was copied compared to the work as a whole? It can still be fair dealing in some circumstances to use a whole work.
Alternatives to the Dealing: Were there suitable non-copyrighted equivalents of the work that could have been used instead? Could your purpose have been fulfilled without needing to make a copy?
The Nature of the Work: Unpublished or confidential works will likely need to be treated differently than published ones. Nonetheless, it may be fair in some circumstances to make an unpublished work available under fair dealing, especially if there is a public interest in providing it.
Effect of the Dealing on the Work: Is the dealing likely to substantially affect or replace the market for the original work? The greater the effect, such that it discourages the production of a work, the less fair the dealing. The availability of a licence, or the work for sale, does not preclude a finding of fair dealing.
Additional information on copyright and fair dealing is available in the Copyright Basics Fair Dealing section.
The MacEwan University Fair Dealing Guidelines ("Guidelines") cover the making and distribution of copies of copyrighted works by faculty and staff for students under fair dealing. The Guidelines represent a safe harbour interpretation of fair dealing in the educational context.
In some cases, using a selection that exceeds the Guidelines may still qualify as fair dealing. Consult with the Copyright Specialist to help with this determination. Fair dealing assessments and approvals will be made based on all relevant information.
Questions? Contact Eva Revitt, Copyright Librarian at firstname.lastname@example.org or copyright services at email@example.com.