Fair Dealing

The Federal Court of Canada issued its decision in the litigation between Access Copyright and York University. The text of the decision is available online. UNB along with most institutions across the country are currently reviewing this decision to determine what impact it might have on our established Copyright policies and procedures.

The Fair Dealing provisions of the Canadian Copyright Act balance the rights of creators and users of copyright-protected content. As a user-focused exception, fair dealing facilitates the sharing of short excerpts of copyrighted works for the purposes of research, private study, education, parody or satire, criticism or review, and news reporting.

Since the Copyright Modernization Act of 2012, or Bill C-11, expanded the application of Fair Dealing to new contexts of parody, satire, and education, Fair Dealing has become an important option for students, faculty, and researchers sharing copyright-protected content. In the context of teaching, Fair Dealing broadens the range of course readings available to students. For instance, it enables faculty to provide students with readings for interdisciplinary courses and emerging fields of study where textbooks are unavailable. Fair Dealing also facilitates the analysis of short excerpts from course readings and media clips in the classroom. In the context of research, Fair Dealing enables faculty and graduate students to share the latest research, including data sets, with their colleagues.

Overall, Fair Dealing promotes the development of culture and education by facilitating the dissemination of intellectual and creative works.

Under Fair Dealing, you can provide short excerpts of copyrighted content to students and faculty via handout, e-mail communication, D2L, lecture presentation, and classroom display. Specific examples of short excerpts include:

  • a copy of an article from a scientific, technical, or scholarly periodical;
  • a newspaper article;
  • an entry from an encyclopaedia, annotated bibliography, or similar reference material;
  • a short story, play, poem, or essay from a publication containing other works.

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Fair Dealing Analysis

If you are satisfied that your reproduction of copyrighted materials falls within the parameters of fair dealing, you must also gauge the fairness of your copying based on these factors:

Note that it is not necessary to completely satisfy each of the following:

Purpose

Is the copying done for research, private study, education, parody, satire, criticism, review, or news reporting? Is the use of the copy for profit or is it charitable? Research for commercial purposes may be less fair but it may still qualify for fair dealing.

Character

What is your intended use of the copy? If the use of the copy is clearly defined and is restricted in scope, it favours fair dealing. For example, single copies are considered more fair than multiple copies, and copies placed on eReserve or D2L are considered more fair than unrestricted means of distribution.

Amount

What is the amount and importance of the portion copied in relation to the work as a whole? Limited and reasonable portions are considered more fair. It is important to note that in many circumstances, it is necessary to copy entire works, such as images, provided they satisfy the remaining Fair Dealing analysis factors. If the entire work is to be reproduced, it has to be clear that no less than the entire work is needed to achieve the stated purpose of use.

Alternatives

Are there other non-copyrighted works available, or works licenced for use by the UNB community, that would have served the same purpose? Was the copy necessary to achieve the purpose of the copy? If there are no alternative works, the reproduction is more fair.

Nature

Is the work published and widely available? If the work was created for and/or is being marketed for your stated purpose, the copying is less fair. If the work is not published, but its reproduction with acknowledgment could lead to a wider dissemination of the work, then it is more likely to be considered fair. Alternatively, if the document was not published and was originally not intended for distribution, such as a private letter or a personal journal, it is likely to be less fair.

Effect

Will the copy unduly affect the market value of the copyrighted work? If the work is out of print and/or there is no licence available, the copying is more fair. If your use of the work minimizes the potential for unauthorized use that could negatively affect its value, your use is more fair. If you take steps to ensure that your use of the work is limited to the stated purpose and to a limited audience, your use is more fair.

For further information about fair dealing and assistance with copyright, we encourage you to contact us at copyright@unb.ca or call us at 447-3378.