Fair Dealing

[Updated: 25 Oct 2024]

"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 in their works 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.

Fair Dealing at the University of Alberta

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.

• Personal copying: the responsibility for determining fair dealing is generally left to the individual user.

• Copying for University purposes: 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 specific circumstances of each case. Assessing whether your use of a copyright-protected work might be considered fair involves an analysis using a two-step legal test that is intended to be broad enough to be applied across the full range of dealings while accounting for a wide variety of different circumstances.

 

The Two-Step Fair Dealing Test

The first step in this two-step test considers your purpose for using the work, and the second step will help you assess the "fairness" of your dealing. A fair dealing analysis requires the application of both steps. If either step is failed, you will need to contact the copyright owner for permission prior to using the material.

 

STEP 1: PURPOSE

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

The purpose of the dealing will be covered under fair dealing if it is for one of the allowable purposes listed in s. 29 of 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, as 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.)

 

STEP 2: SIX FAIRNESS FACTORS

Is the dealing "fair"?

The second step is an analysis to assess the "fairness" of your dealing in terms of specifically how the content is used. The Supreme Court of Canada has identified six factors to consider when assessing fairness.

Factors (excerpted from CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13)

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

1. The Purpose of the Dealing

   While the use of a work may involve one of the listed purposes, that purpose may not be the most significant. A fair dealing analysis should attempt to make an objective assessment of the user's primary purpose or motive in using the copyrighted work.

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 the dealing was fair.

3. The Amount of the Dealing

   The amount of the dealing is focused on how much of the work is being used. The amount of the work used will not by itself be determinative of fairness, but it can help in the determination. Although in general use of a greater proportion of a work may tend toward unfairness, it may be possible to deal fairly with an entire work.

4. Alternatives to the Dealing

   If there is a non-copyright-protected or openly licensed equivalent of the work that could have been used instead of the work, this should be considered in the determination of fairness. It may also be useful to attempt to determine whether the dealing was reasonably necessary to achieve the ultimate purpose.

5. The Nature of the Work

   Although certainly not determinative, if a work was intended to be published but is not widely available, 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 never intended for publication, this may tip the scales towards finding that the dealing was unfair.

6. Effect of the Dealing on the Work

   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 to be considered in deciding whether the dealing is fair.

 

Conducting a Fair Dealing Analysis

Step 1: Is your use of the work a fair dealing purpose?

Allowable purposes under the Copyright Act are: research, private study, education, parody, satire, criticism, review, or news reporting.

YES: Proceed to the next step of the analysis. Use the six factors to assess the fairness of the dealing. Some considerations for assessing fairness are listed below. 

NO: Contact the copyright owner for permission prior to using their work.

 

Step 2: Considerations for assessing fairness

Is the dealing “more fair” or “less fair?”

• 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.

Do you really need it?

• 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.

• Consider whether your reasons for including different excerpts in your work vary (in relation to the six factors). If so, you should undertake a separate fair dealing analysis to address the relevant differences.

• Using multiple excerpts from the same work may tend toward unfairness; instead try using as many sources as possible when sourcing content.

Can you find an alternative?

• If the content you wish to include can be substituted with a public domain or openly licensed equivalent without affecting the integrity of your research, then it is preferable to use that alternative.

• When considering an "alternative" to your dealing, you may discover that a comparable public domain or openly 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.

Do you want to modify the material instead of reproducing the original?

• The act of modifying or adapting an image (or graph, diagram, figure, etc.), or taking only a portion of a work, does not nullify the copyright owner's rights. Work through the fair dealing analysis, and if fair dealing does not apply then seek permission to use the content.

Resources for conducting a fair dealing analysis

• Opening Up Copyright Instructional Module: Applying Fair Dealing
• CMEC: Fair Dealing Decision Tool

 

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:

 

Case Law

The following Opening Up Copyright Instructional Modules are about cases concerned with issues related to the interpretation of the Copyright Act’s fair dealing exception.

CCH Canadian Ltd. v. Law Society of Upper Canada
The CCH case is most significant for clarifying how to make a determination of fair dealing, and for endorsing the two-stage approach and the six-factor test for fairness. The six-factor test appeared first as part of this case and has been used many times since to assist in establishing the fairness of a dealing.

Society of Composers, Authors and Music Publishers of Canada v. Bell Canada
This case reaffirms and further clarifies the application of CCH’s six-factor test. The Court found that the previews of songs streamed on the internet were for a research purpose, that the research was conducted by the customer, and that this use satisfied the six-factor test and thus counted as fair dealing.

Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright)
As with the decision in SOCAN v. Bell, the application of the CCH six-factor test is reaffirmed and further clarified in this case. The Alberta (Education) decision confirms that, under fair dealing, a teacher can lawfully reproduce short excerpts of materials and distribute those copies to the students in their classes.

Access Copyright v. York University
The main issues of this case revolve around whether tariffs approved by the Copyright Board are mandatory and whether the copyright fair dealing guidelines used by York University were fair.