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Applying Fair Dealing

*May 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.

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FAIR DEALING

s. 29

FAIR DEALING

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: …

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FAIR DEALING

THE BALANCING ACT

USERS

COPYRIGHT OWNERS

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STEP ONE: PURPOSE OF USE

s. 29

Require attribution when used

Step one = Assess the purpose of use

STEP ONE: PURPOSE OF USE

✓

Intended to be considered broadly

News Reporting

Research

Private Study

Education

Parody

Review

Criticism

Satire

Purpose:

The first step is determining whether the use is eligible to be considered fair dealing. This is done by assessing the purpose of the use. Section 29 of the Copyright Act lists five purposes: Research, Private Study, Education, Parody, and Satire.

The use of copyright-protected material for any of these purposes will not infringe copyright if that use is accepted by the rights holder or determined by a court of law to be fair.

The Act identifies three additional purposes for which fair dealing might also apply. These are: criticism or review, and news reporting.

These are separated from the initial list of five because they carry the additional requirement of including proper attribution when used.

Just meeting one of the purposes in the first step doesn’t mean that the use is fair. It depends on the outcome of the second step, the six-factor test. The first step makes it clear that if your use falls outside of the eight purposes, then you cannot rely on fair dealing. However, it is important to note that the eight purposes are intended to be considered broadly – for example listening to short previews of music before purchasing is considered research.

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INTERPRETING THE PURPOSES

“In mandating a generous interpretation of the fair dealing purposes, including ‘research’, the Court in CCH created a relatively low threshold for the first step so that the analytical heavy-hitting is done in determining whether the dealing was fair.” (SOCAN v. Bell, para. 27).

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STEP TWO: �THE SIX-FACTOR TEST

SOCAN v. Bell

CCH v. LSUC

Alberta (Education) v. Access Copyright

The factors are a guide to making an interpretation of whether a dealing should be considered fair

STEP TWO:

THE SIX-FACTOR TEST

Purpose

The six-factor test is used to assess whether the use of the work can be reasonably considered as fair. The six-factors are: The purpose of the dealing, the character of the dealing, the amount of the dealing, alternatives to the dealing, the nature of the work, and the effect of the dealing.

It is important to note that not all factors will apply in all cases, and the factors do not need to be equally weighted. These factors are simply a guide to making an interpretation of whether a dealing should ultimately be considered to be fair. The Supreme Court also noted that in future cases other factors beyond these six may be considered.

So how do you apply the six factors? Fortunately, the Supreme Court in three fair dealing decisions (CCH, SOCAN and Alberta) has provided some guidance on how to understand and apply the factors.

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PURPOSE OF THE DEALING

Purpose

Consider the user’s real motivation

Consider safeguards under purpose

Guidance based on Supreme Court decisions:

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CHARACTER OF THE DEALING

Guidance based on Supreme Court decisions:

Character refers to how the work is dealt with

Consider how the work is distributed (and the number of copies)

Think about what happens to the work after it is used

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AMOUNT OF THE DEALING

Guidance based on Supreme Court decisions:

Consider how much of a work is being copied (not how many copies are being made)

Remember there is no magic percentage

Purpose

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ALTERNATIVES FACTOR

Guidance based on Supreme Court decisions:

Consider what the other options are

Whether a non-copyright-protected work could be used instead

Availability of a licence does not weigh on fairness

?

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NATURE OF THE WORK

Guidance based on Supreme Court decisions:

Think about the relationship between the work and its distribution

Consider if it is fair to distribute this work

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EFFECT OF THE DEALING

Guidance based on Supreme Court decisions:

Consider the financial impact of these copies on the rights holder

This factor should not be weighed more heavily than the other factors, unlike how it is treated under fair use in the U.S.

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IT DEPENDS

Purpose

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FAIR DEALING RESOURCES

Opening Up Copyright Modules:

Other Resources:

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INTERPRETING FAIR DEALING

FAIR DEALING

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INTERPRETING FAIR DEALING

Purpose

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INTERPRETING FAIR DEALING

What even is fair dealing?

“It depends.”

…Not sure about this.

Yeah. This looks risky!

WAY too risky.

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LEARNING OBJECTIVES

Recognize that satisfying a fair dealing purpose fulfills only the first step of the two-step fair dealing test

Understand the six factors and their relationship to one another in the second part of the two-step fair dealing test

Apply both steps of the two-step fair dealing test to conduct a fair dealing analysis

You should now be able to:

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THANK YOU FOR YOUR ATTENTION

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In conducting the first step of the two-step fair dealing test, the stated purposes should be interpreted:

Narrowly/restrictively
Broadly/liberally
Only by a Major League Baseball heavy hitter

A fair dealing analysis consists of:

A one-step test that determines if the purpose for using the work matches at least one of the purposes listed in the Copyright Act
A two-step test that involves assessing if the purpose for using the work matches at least one the purposes listed in the Copyright Act, and then evaluating fairness based on considering the six factors noted by the Supreme Court of Canada
A six-step test that determines fairness based on considering the six factors noted by the Supreme Court of Canada
A 48-step test analyzing fairness for every purpose and every factor
Roll a pair of dice – snake eyes, box cars or a 7 and the dealing is fair, if not the dealing is unfair

QUESTIONS

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When considering fairness in the second step of the two-step test, each factor should be considered in isolation with no consideration of how the factors relate.

True
False

Identify the six factors in the fair dealing assessment:

Nature
Novelty
Amount
Cost
Effect
Character
Purpose
Coolness
Popularity
Alternatives
Fairness

QUESTIONS

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To conclude a fair dealing assessment you must have a minimum of how many factors weight towards fairness?

Three factors (50%)
Four factors (66%)
Six factors (100%)
There is no formula, checklist, or scorecard that involves considering all six factors and the relationship among them

You can only proceed to the second (considering the six factors) if you pass the first step (meeting at least one of the allowable purposes).

True
False

QUESTIONS

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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

Canadian Association of University Teachers. (2013). CAUT guidelines for the use of copyrighted material. https://www.caut.ca/docs/default-source/copyright/revised-caut-guidelines-for-the-use-of-copyrighted-material-(feb-2013).pdf

Geist, M. (2018, February 28). Why fair dealing safeguards freedom of expression: The case of the Vancouver aquarium. https://www.michaelgeist.ca/2018/02/fair-dealing-safeguards-freedom-expression-case-vancouver-aquarium/

University of Alberta Copyright Office. (n.d.). Fair dealing. https://www.ualberta.ca/faculty-and-staff/copyright/intro-to-copyright-law/fair-dealing/index.html

University of Ottawa Library. (n.d.). Fair dealing guidelines. https://www.uottawa.ca/library/copyright/what-is-copyright/exceptions-copyright/fair-dealing-guidelines

University of Toronto. (2012). Copyright basics & FAQ. University of Toronto Libraries. https://onesearch.library.utoronto.ca/sites/default/public/copyright/2023_copyrightbasics_faqs.pdf

REFERENCES AND RESOURCES

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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

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Klankbeeld. (2011). Barrel organ of carousel. Freesound. CC BY. https://freesound.org/people/klankbeeld/sounds/120368/

Icon Sea. (2018). String lights. The Noun Project. CC BY. https://thenounproject.com/icon/string-lights-1797620/

Oliver Gomez. (2017). Cannon. The Noun Project. CC BY. https://thenounproject.com/icon/cannon-1252720/

Isaac200000. (2013). Cannon1. Freesound. CC 0. https://freesound.org/people/Isaac200000/sounds/184650/

Fabian_lm. (2018). Circo/Circus. Freesound. CC BY-NC. https://freesound.org/people/fabian_lm/sounds/436437/

LeftHandedGraffic. (2014). Equilibrist. The Noun Project. CC BY. https://thenounproject.com/icon/equilibrist-44479/

Loïc Poivet. (2015). United Kingdom flag. The Noun Project. CC BY. https://thenounproject.com/icon/united-kingdom-flag-168361/

IMAGE AND SOUND REFERENCES

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Loïc Poivet. (2014). Canada. The Noun Project. CC BY. https://thenounproject.com/icon/canada-78131/

Made. (2017). Carnival game. The Noun Project. CC BY. https://thenounproject.com/icon/carnival-game-1175829/

Mohamed Mb. (2017). Hammer. The Noun Project. CC BY. https://thenounproject.com/icon/hammer-1248131/

Deleted_user_7146007. (2017). Ringing metal bell. Freesound. CC 0. https://freesound.org/people/deleted_user_7146007/sounds/383900/

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

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/

IMAGE AND SOUND REFERENCES

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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/

Viktor Vorobyev. (2016). Clock. The Noun Project. CC BY. https://thenounproject.com/icon/clock-635969/

Lnhi. (2018). Charity. The Noun Project. CC BY. https://thenounproject.com/icon/charity-1941158/

BomSymbols. (2017). Money. The Noun Project. CC BY. https://thenounproject.com/icon/money-890872/

Daria Szymonowicz. (2017). Documents. The Noun Project. CC BY. https://thenounproject.com/icon/documents-1353220/

Adrien Coquet. (2019). Who. The Noun Project. CC BY. https://thenounproject.com/icon/who-2714591/

IMAGE AND SOUND REFERENCES

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Daria Szymonowicz. (2016). Quarter. The Noun Project. CC BY. https://thenounproject.com/icon/quarter-607600/

Agniraj Chatterji. (2016). Locked folder. The Noun Project. CC BY. https://thenounproject.com/icon/locked-folder-608660/

banjirolove. (2018). Sun. The Noun Project. CC BY. https://thenounproject.com/icon/sun-1777177/

Hannah Anderson. (2018). Crystal Ball. The Noun Project. CC BY. https://thenounproject.com/icon/crystal-ball-2126128/

Ari_Glitch. (2018). Magic circle medium ringing. Freesound. CC 0. https://freesound.org/people/Ari_Glitch/sounds/432288/

Alberto LM. (2017). Table. The Noun Project. CC BY. https://thenounproject.com/icon/table-929234/

Icons By Alfredo. (2016). Ladder. The Noun Project. CC BY. https://thenounproject.com/icon/ladder-424668/

QualityIcons. (2019). Banners. The Noun Project. CC BY. https://thenounproject.com/icon/banners-2324856/

IMAGE AND SOUND REFERENCES

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Dmitrii Lagunov. (2013). Walking. The Noun Project. CC BY. https://thenounproject.com/icon/walking-26898/

National Park Service. (n.d.). Diving. The Noun Project. CC BY. https://thenounproject.com/icon/diving-229/

Qubodup. (2013). Circus climax drums. Freesound. CC BY. https://freesound.org/people/qubodup/sounds/182442/

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

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University of Alberta. (2020). Applying 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

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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

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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).