Copyright Exception: Fair Dealing

Fair Dealing in Canadian Copyright Law

By Shaya Silber

Copyright, in a nutshell is the right to use or reproduce a creative work. While copyright does provide significant protection to creators, protection is not absolute.

For every copyrighted work, there are certain permitted uses that are open to the public.  These exceptions have been interpreted over time to apply to various scenarios.  In the current version of the Copyright Act, the exceptions are for:

1. research of private study
2. criticism or review
3. news reporting

When relying on the above categories, users must sometimes also mention the original source of the material, including the author, creator or broadcaster etc for the dealing to be considered fair.  In other circumstances, another consideration is whether or not the use was for commercial purposes or not.

The relevant portion of the Copyright Act is reproduced below this article.

Fair Dealing v. Fair Use

It is important to note that the Canadian concept of Fair Dealing is not to be confused with its American counterpart of Fair Use.  On paper, it’s a difference of one word, but in practice the difference is rather significant.  Generally speaking, permissible activity under fair use is considerably broader than fair dealing.  These concepts should not be confused.

Right to Copy for Use in Parody

For example, in the United States, fair use permits the parody of a copyrighted work. In Canada, the Copyright Act does not include such an exception for parody.  A Quebec case illustrated this difference several years ago. In the case, it was argued that “parody” should fall within the exception of “criticism”.  The case failed because of certain commercial objectives of the defendant.

There are proposed amendments to the Copyright Act which contains an exception for parody (among other significant changes to the Copyright Act). They are currently being debated.

Test for Fair Dealing

The Law Society of Upper Canada (“LSUC”) is responsible for regulating the legal profession in Ontario. It is based in Toronto at Osgoode Hall. Among it’s numerous functions, Osgoode Hall is home to the Great Library, which is a vast collection of legal writings and precedents. The Great Library, in some circumstances grants access to the works and allows for the photocopying of certain works.

Publishers of legal materials sued the LSUC for copyright infringement of their works. They demanded a halt to all reproduction of materials published by them.

In  CCH Canadian Ltd. v. Law Society of Upper Canada, the court provided some insight into the objectives of fair dealing. The court also offered some guidelines to be used in evaluating the parameters of fair dealing.

The court stated that:

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.

The court explained that fair dealing is less of an exception and more of a right that is granted to the public. It’s objective is to strike a balance between protecting the works of owners, and encouraging further innovation. Therefore, the permitted uses under fair dealing are not to be construed restrictively.

Test for Fair Dealing

In determining the parameters of fair dealing the court enumerated several factors to be considered. They are:

1. Purpose of the dealing (i.e. was it research, private study, criticism etc)
2. Character of the dealing (i.e. what was done with the works? One copy v. multiple. Large distribution v. limited distribution etc)
3. Amount of the dealing (Was a significant portion of the work copied?)
4. Alternatives to the dealing (was there a reasonable alternative in achieving the user’s objective?)
5. Nature of the work (was the work confidential or previously published?)
6. Effect of the dealing on the work (how does it affect the market, reputation etc of the original work)

These factors are not set in stone.  Rather they are to be applied to each scenario as required.  However, as mentioned in the case, when delineating permissible activity under fair dealing, we must steer clear of a restrictive approach.

Fair Dealing Excerpt from The Copyright Act (R.S., 1985, c. C-42):

Research or private study

29. Fair dealing for the purpose of research or private study does not infringe copyright.
R.S., 1985, c. C-42, s. 29; R.S., 1985, c. 10 (4th Supp.), s. 7; 1994, c. 47, s. 61; 1997, c. 24, s. 18.

Criticism or review

29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:
(a) the source; and
(b) if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer’s performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.
1997, c. 24, s. 18.

News reporting

29.2 Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned:
(a) the source; and
(b) if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer’s performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.

Conclusion

The purpose of fair dealing is to provide protection for creators and encourage innovators.  As such, it’s a constant balancing act.  There is no quick answer. Every scenario must be examined separately with consideration paid to its particular factors.  Contact a lawyer if you’re not sure whether your use of a copyrighted work falls under fair dealing.