Notes on Fair Dealing in Canada
Canada’s fair dealing is similar to that in UK and Australia. The Canadian Copyright Act allows users tomake copies of portions of works for “research and private study.” The term “educational purposes” is notincluded in the act.
The following criteria must be considered in evaluating what constitutes “fair dealing” in Canada:
1. The Purpose of the Dealing Is it for research, private study, criticism, review or news reporting?
It expresses that "these allowable purposes should not be given a restrictive interpretation or this
could result in the undue restriction of users' rights."
2. The Character of the Dealing How were the works dealt with? Was there a single copy or weremultiple 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 theindustry?
3. The Amount of the Dealing How much of the work was used? What was the importance of theinfringed work? Quoting trivial amounts may alone sufficiently establish fair dealing. In somecases even quoting the entire work may be fair dealing.
4. Alternatives to the Dealing Was a "non-copyrighted equivalent of the work" available to theuser? Could the work have been properly criticized without being copied?
5. The Nature of the Work Copying from a work that has never been published could be more fairthan 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 inquestion was confidential, this may tip the scales towards finding that the dealing was unfair."6. 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 isfair." A statement that a dealing infringes may not be sufficient, but evidence will often be required.
The Association of Universities and Colleges of Canada (AUCC) works very hard in advocating thatmaking copies of a periodical article, newspaper article, short story, poem, play or essay contained in abook for the purposes of “research and private study” is fair dealing.
It has been noted in the Concordia University Libraries Copyright Guide that “In Canada, fair dealing, asdefined by the Copyright Act is more restrictive than the fair use provisions in the United States,
particularly in regards to education and teaching.” As an example, one can show films or videos in aclassroom in the United States without obtaining permission. In Canada, public performance rights mustbe acquired.
Sources used:
Wikipedia:
http://en.wikipedia.org/wiki/Fair_dealing#Fair_dealing_in_Canada
Concordia University Libraries – Copyright Guide:
http://library.concordia.ca/help/copyright/(see section on “Fair Dealing (Canada) vs. Fair Use (US)”)For reference, see also:
National Gallery of Canada (Terms and Conditions):
http://www.national.gallery.ca/english/370.htm
Finding and Using Images Online (Simon Fraser University – Vancouver, BC):
http://www.lib.sfu.ca/researchhelp/publicationtypes/images.htm