Fair Dealing

Fair dealing is the fundamental right to, in certain circumstances, access and use part or all of a work without permission or payment. More specifically, the Act provides that fair dealing for the purpose of research or private study does not infringe copyright. If certain attribution requirements are met, fair dealing also applies to criticism, review, and news reporting. While there is no precise formula defining exactly what fair dealing is, the law is guided by several factors including the nature of the use, as well as its character, purpose and amount. Traditionally, fair-dealing was frowned on by Canadian courts and seen as a limited technical defence to claims of copyright infringement. But this restrictive view has been transformed as a result of a recent judgement by the Supreme Court of Canada. The key shift came in 2004 with the CCH Canadian Ltd. v. Law Society of Upper Canada decision. The court rejected the view that fair-dealing was simply a limited defense to 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.

The court ruled that the actual fair dealing categories of research and private study need to be given a broad and liberal interpretation. In addition to broadening the scope of the fair- dealing categories and allowing it to be performed by an intermediary (a library for example), the Court also confirmed the list of factors that should guide a finding of fair dealing:

  • the purpose of the use;
  • the character of the dealing;
  • the amount of the dealing;
  • alternatives to the dealing;
  • the nature of the original work; and
  • the effect of the dealing on the work

The Supreme Court’s recognition of a new copyright doctrine based on users’ rights and the need for careful balancing of interests between the rights of owners and users now needs to be enshrined in the Copyright Act.

This open-ended approach reflects the meaning of the CCH case, and also serves the interests of students, teachers, librarians, and administrators; as well as other life-long learners who aren’t affiliated with an institution. This general approach would avoid having to ask for special exceptions for educational institutions that are not available to the general public.