1 of 23

Copyright Act, �Section 29: Fair Dealing

*January 2020

This instructional module is not intended as legal advice. All Opening Up Copyright modules are made available under a Creative Commons Attribution 4.0 (CC-BY-4.0) International license.

2 of 23

THE FAIR DEALING EXCEPTION

Exceptions

Fair Dealing

Research, private study, etc.

29 Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

Criticism or review

29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned: …

News reporting

29.2 Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned: …

“... the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence” (para. 48).

Fair Dealing = A User’s Right

s. 29

CCH Canadian Ltd. v. Law Society of Upper Canada

CCH

v.

S

U

C

L

CCH v. LSUC

In the landmark 2004 CCH v. Law Society of Upper Canada case the Supreme Court of Canada definitively stated “... the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence” (para. 48) going on to note that fair dealing is a user’s right.

�So what does this integral part of the Act say? Section 29 of the Act states, “Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.” In addition section 29.1 covers fair dealing for the purposes of criticism or review and includes two conditions – identifying the source and the author, performer, maker or broadcaster. Section 29.2 outlines fair dealing for news reporting with the same set of conditions as criticism and review. And… well... that’s it.

3 of 23

FAIR DEALING PURPOSES

Purpose:

News Reporting

Research

Private Study

Education

Parody

Review

Criticism

Satire

4 of 23

THANK YOU FOR YOUR ATTENTION

5 of 23

HOLD UP

Exceptions

Fair Dealing

Research, private study, etc.

29 Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

Criticism or review

29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned: …

News reporting

29.2 Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned: …

Purpose:

Research

Private Study

Education

Parody

Satire

Criticism

Review

News Reporting

s. 29

Education

6 of 23

ASSESSING FAIR DEALING

Purpose

CCH

Two -Step Test

Purpose

7 of 23

INTERPRETATION BY THE COURTS

SOCAN v. Bell

CCH v. LSUC

Alberta (Education) v. Access Copyright

+

8 of 23

FAIR DEALING VS. FAIR USE

U.S. fair use provisions state “purposes such as criticism, comment, news reporting” etc.

(17 U.S.C. § 107, emphasis added)

Fair Dealing Categories:

Fair Use Categories:

Six-Factor Test

Four-Factor Test

Scholarship

Teaching

Comment

The kinds of things that fall under fair use

The only things that fall under fair dealing

Looking only at the Act also obscures a second important discussion around fair dealing. Canadian fair dealing exceptions are often compared with American fair use exceptions for copyright infringement. While there are some similarities, for example criticism, news reporting and research are listed both as fair dealing and as fair use purposes, there are some notable differences. Unlike Canada’s legislation, the U.S. legislation lists four factors used for assessing fair use. More importantly though, the U.S. fair use provisions state “purposes such as criticism, comment, news reporting” etc. What is notable is not the similarities or differences in the purposes, but those two little words “such as”. The U.S. fair use list is illustrative – it allows for purposes that might be closely aligned with the stated purposes, but not exactly stated. In contrast, the Canadian fair dealing purposes are exhaustive – your use must fall within the specific categories listed to qualify. This is an important difference.

9 of 23

EXHAUSTIVE VS. ILLUSTRATIVE

CCH v. LSUC

“Research must be given a large and liberal interpretation” (para. 51).

“In mandating a generous interpretation of the fair dealing purposes…the Court in CCH created a relatively low threshold for the first step” (para. 27).

SOCAN v. Bell

EXHAUSTIVE VS. ILLUSTRATIVE

10 of 23

EXHAUSTIVE VS. ILLUSTRATIVE

“[A]n illustrative fair dealing provision would simplify the Act, increase its flexibility, make it more technology neutral, and place Canadians on a level playing field with countries that have a similar provision” (p.68).

Purpose

Recommendation 18

(2019)

11 of 23

LEARNING OBJECTIVES

You should now be able to:

Identify the eight purposes for fair dealing

Recognize the limitation of relying on only the Copyright Act for understanding fair dealing

Understand the difference between an illustrative list of fair dealing purposes and an exhaustive list

12 of 23

THANK YOU FOR YOUR ATTENTION

13 of 23

Which of the following is not a purpose covered under the fair dealing categories in s. 29?

Parody
Research
Private Study
Informational Analysis

Which of the following purposes are found both in the fair dealing categories in Canada and the fair use categories in the United States:

Research, News Reporting, and Criticism
Research, World Domination, Education
Research, Scholarship, Comedy
Research, The Common Good, Art

QUESTIONS

14 of 23

In the Supreme Court of Canada cases SOCAN v. Bell and CCH v. LSUC the court expressed that:

There should be a generous interpretation of the fair dealing purposes
There are four factors that need to be assessed when determining if a dealing is fair
The fair dealing purposes are illustrative and are open to interpretation
The purpose of the dealing is the only important factor in a fair dealing assessment

To fully grasp the concept of fair dealing all you need is:

The Copyright Act
The Copyright Act and an understanding of how the applicable sections of the Act have been interpreted by the courts
An omniscient Genie and at least one remaining wish

QUESTIONS

15 of 23

In the Statutory Review of the Copyright Act, the INDU committee recommended amending the list of fair dealing purposes to make it:

Illustrative
Illustrious
Exhaustive
The opposite of the United States, whatever that is

The list of U.S. fair use purposes is considered illustrative rather than exhaustive because it includes the following before the list of purposes:

“Like”
“Such as”
“Whatever”
“Gag me with a spoon”

QUESTIONS

16 of 23

Canadian Association of Research Libraries. (n.d.). About fair dealing. Retrieved 2019, from https://fair-dealing.ca/what-is-fair-dealing/

Canadian Association of Research Libraries. (2024). Code of Best Practices in Fair Dealing for Open Educational Resources: A Guide for Authors, Adapters & Adopters of Openly Licensed Teaching and Learning Materials in Canada. https://www.carl-abrc.ca/wp-content/uploads/2024/02/CARL_Code_Best_Practices_FD_OER-1.pdf

Coombe, R., Wershler, D., & Zeilinger, M. (Eds.). (2018). Dynamic fair dealing: Creating Canadian culture online. University of Toronto Press.

Geist, Michael. (2019, June 5). Fixing fair dealing for the digital age: What lies behind the copyright review’s most important recommendation. https://www.michaelgeist.ca/2019/06/fixing-fair-dealing/

House of Commons Standing Committee on Industry, Science and Technology. (2019). Statutory review of the Copyright Act. https://www.ourcommons.ca/Content/Committee/421/INDU/Reports/RP10537003/indurp16/indurp16-e.pdf

REFERENCES AND RESOURCES

17 of 23

17 U.S.C. § 107 (2020)

Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, [2012] 2 SCR 345. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/9997/index.do

CCH Canadian Ltd v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 SCR 339. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2125/index.do

Society of Composers, Authors and Music Publishers of Canada v. Bell Canada, 2012 SCC 36, [2012] 2 SCR 326. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/9996/index.do

CASES AND LEGISLATION

18 of 23

Dig deeper. (2017). [Supreme Court of Canada]. Wikimedia Commons. CC BY 4.0. https://commons.wikimedia.org/wiki/File:Supreme_court_of_Canada_in_summer.jpg

DigestContent. (2018). Woosh punch. Freesound. CC BY-NC. https://freesound.org/people/DigestContent/sounds/442755/

Apple Inc. Cricket [iMovie sound effect].

Luffy. (2005). Record scratch. Freesound. CC BY. https://freesound.org/people/luffy/sounds/3536/

WaveJunction. (2019). Office paper crumple folding handling. FreeSound. CC 0. https://freesound.org/people/WavJunction.com/sounds/456769/

Kick. (2017). Scale. The Noun Project. CC BY. https://thenounproject.com/icon/scale-1320645/

qubodup. (2008). Whoosh. Freesound. CC 0. https://freesound.org/people/qubodup/sounds/60013/

Ruslan Dezign. (2017). Target. The Noun Project. CC BY. https://thenounproject.com/icon/target-1005058/

IMAGE AND SOUND REFERENCES

19 of 23

ATOM. (2017). Copy. The Noun Project. CC BY. https://thenounproject.com/icon/copy-1474212/

Тимур Минвалеев. (2016). Percent. The Noun Project. CC BY. https://thenounproject.com/icon/percent-397874/

b. Farias. (2017). Decision. The Noun Project. CC BY. https://thenounproject.com/icon/decision-1074053/

AFY Studio. (2018). Leaf. The Noun Project. CC BY. https://thenounproject.com/icon/leaf-1737325/

Gregor Cresnar. (2015). Dollar sign. The Noun Project. CC BY. https://thenounproject.com/icon/dollar-sign-171145/

[Canadian flag]. Wikimedia Commons. Public Domain. https://commons.wikimedia.org/wiki/File:Flag_of_Canada.svg

[American flag]. Wikimedia Commons. Public Domain. https://commons.wikimedia.org/wiki/File:Flag_of_the_United_States.svg

IMAGE AND SOUND REFERENCES

20 of 23

[INDU report cover image and House of Commons logo]. (2019). https://www.ourcommons.ca/Content/Committee/421/INDU/Reports/RP10537003/indurp16/indurp16-e.pdf

Closing Slides Music: Rybak, Nazar. (n.d.). Corporate Inspired. HookSounds. CC BY. http://www.hooksounds.com

Unattributed materials are contributions from the Opening Up Copyright Project Team and placed in the Public Domain.

IMAGE AND SOUND REFERENCES

21 of 23

University of Alberta. (2020). Copyright Act, Section 29: Fair Dealing. Opening Up Copyright Instructional Module. https://sites.library.ualberta.ca/copyright/

LICENSING AND ATTRIBUTION

Suggested Citation:

For the project overview and complete list of modules please visit the project website at: https://sites.library.ualberta.ca/copyright/

Questions, comments, and suggestions should be directed to: ouc@ualberta.ca

This module is made available and licensed under a Creative Commons Attribution 4.0 International Licence

22 of 23

CONTRIBUTORS

Copyright Office

Technologies in Education

Centre for Teaching and Learning

University of Alberta Library

School of Library and Information Studies

Adrian Sheppard

Amanda Wakaruk

Mireille Smith

Anwen Burk

Cosette Lemelin

Graeme Pate

Krysta McNutt

Michelle Brailey

Luc Fagnan

Julia Guy

Michael B. McNally

23 of 23

ACKNOWLEDGMENT

The Opening Up Copyright (OUC) module series is made available by the University of Alberta Copyright Office.

OUC modules have been produced with the assistance of funding at the University of Alberta through its Centre for Teaching and Learning's Teaching and Learning Enhancement Fund (TLEF) (2017-21) and OER Grant Program (2020), and through a Support for the Advancement of Scholarship (SAS) grant (2021).