Fair Dealing in Canada

What is Fair Dealing?

Generally speaking, copyright gives the individual who owns the rights to a work the ability to dictate how it is reproduced and under what conditions. “Fair dealing” is an exception to this – it allows users to perform certain activities (like say, photocopying a book so you can continue studying when you leave the library) without violating copyright.

The first factor essential to deciding if an activity falls under fair dealing is its purpose – i.e., the reason you are making a copy. In the Canadian Copyright Act, section 29 lays out these exceptional purposes:

1. Research or Private Study: users can make copies so long as the purpose is for research or private study (section 29).

2. Criticism or Review: users can make copies for criticism or review, as long as they include the source and, if given in the source, the author, performer, maker or broadcaster (section 29.1).

3. News Reporting: users can make copies for news reporting, as long as they include the source and, if given in the source, the author, performer, maker or broadcaster (section 29.2).

For each exception listed above, there are other details included in the Copyright Act. For further information, users should carefully read the appropriate provisions in the Copyright Act, available here: http://laws-lois.justice.gc.ca/eng/acts/C-42/page-17.html#h-23.

However, purpose is not the only factor courts look at when determining whether the fair dealing exception applies to a particular use. For the activity to be covered under fair dealing, the Court will also look to:

1. Character of the dealing: for example, distributing many copies widely might be considered unfair.

2. Amount of the dealing: generally, the more you have taken, the less fair the activity was.

3. Alternatives to the dealing: was there a non-copyrighted work available? Does the use actually achieve the intended purpose? If not, the activity may be seen as unfair.

4. Nature of the work: for example, if a work is unpublished, the dealing might be more fair because it allows the work to be more widely available.

5. Effect of the dealing: if the effect of the copying is that the new version competes with the original work, it may be seen as less fair.

Recent Supreme Court of Canada Decisions (SOCAN v BellAlberta v Access Copyright)

In July 2012, the Supreme Court of Canada released five major copyright-related decisions. Two of these judgments were about fair dealing, and together they reinforced that fair dealing is a right that should be determined broadly, not narrowly.

In the third judgment, the Court looked at whether song previews (30-90 second music clips users can listen to before buying a song on iTunes) fell under fair dealing. In this decision, the SCC concluded that users who listen to the song previews are conducting research before deciding to purchase, and research is a permitted purpose of fair dealing.

In the fourth decision, the Court looked at copies made by teachers to distribute to their students in public schools. The Court confirmed that teachers’ copies of materials for their students is an “essential element in the research and private study undertaken by those students,” regardless of whether the student specifically requested the materials or if the teacher simply chose to offer them.

Copyright Modernization Act

In 2012, Parliament introduced Bill C-11, entitled the Copyright Modernization Act. The bill was passed in the House of Commons and approved by the Senate in June. The reforms introduced by the bill have not yet gone into effect; however, The Copyright Modernization Act adds three new legitimate purposes to fair dealing: education, parody and satire.

Resources:

• http://www.torys.com/Publications/Pages/IP2012-3_Canadas_Supreme_Court_Broadens_Fair_Dealing.aspx

• http://scc.lexum.org/en/2012/2012scc37/2012scc37.html

• http://scc.lexum.org/en/2012/2012scc36/2012scc36.html

• http://www.michaelgeist.ca/content/view/6588/125/

• http://laws-lois.justice.gc.ca/eng/acts/C-42/page-17.html#docCont

http://laws-lois.justice.gc.ca/eng/acts/C-42/page-17.html#docCont

• http://www.cbc.ca/news/politics/story/2012/06/19/pol-copyright-bill-passed-commons.html