Canadian Fair Dealing: A primer for SIS students

By Rebecca Katz

Copyright is significant to the world of libraries, archives, and information management. In my research as well as my work advocating balanced copyright, I’ve come across some misconceptions and misperceptions about the law. A common issue for Canadians is that information about US law often overshadows its Canadian counterparts. Below is a very brief introduction to fair dealing, Canada’s counterpart to American fair use law.

First, copyright is not a limitless monopoly for owners. In most legal systems, copyright (an owner’s exclusive rights to do certain things with a creative work) expires eventually, at which point works enter the public domain. Further, copyright laws generally have both broad and narrow exceptions. The broad scheme of legislative exceptions in the US is called fair use. This means that a second-generation user can make certain uses of a copyrighted work that would otherwise infringe copyright, as long as the use meets some court-determined criteria.

Canada has its own similar, but not identical, legal doctrine, called fair dealing. Like fair use, fair dealing allows actors who are not the copyright owner to make certain uses of copyrighted works, and to defend those uses from infringement claims. Canada’s fair dealing doctrine works kind of like a flow chart. First, to benefit from this defense, a dealing with a copyrighted work must meet one of several purposes specified in Canada’s Copyright Act. Possible purposes are: research, private study, education, parody or satire, criticism or review, and news reporting. Subsequently, if a court determines that a dealing with a copyrighted work qualifies for a listed purpose, the court will consider six fair dealing factors to decide whether the defense applies. The factors are:

The purpose of the dealing Is the purpose an allowable one under the Act? Is it commercial (possibly fair) or non-commercial (even more likely to be considered fair dealing)?
The character of the dealing How was the copyrighted work dealt with? What are typical norms or practices in this community?
The amount of the dealing How much of the copyrighted work was copied or reused? (However, Canada’s Supreme Court has stated there may be times when copying a whole work is nevertheless fair.)
Alternatives to the dealing Did the person hoping to rely on fair dealing have alternatives available that would still allow them to achieve their goals? (The Supreme Court does not, however, require Canadians to change their goals or business model, or to resort to unwieldy alternatives.)
The nature of the copyrighted work Is the work fact or fiction, published or unpublished?
The effect of the dealing on the copyrighted work Is the would-be fair dealing likely to compete with the first-generation copyrighted work?

Canadian law also contains specific copyright exceptions for different actors or circumstances, such as libraries seeking to preserve items in their collections or offer interlibrary loans. Those exceptions tend to be quite detailed and narrow, with many conditions to meet. Fair dealing, by contrast, is high level. Fair dealing is also a retroactive defense, i.e., it can be hard to predict whether a specific dealing will be fair. However, Canada’s Supreme Court has been moving toward a liberal view of fair dealing for decades. Canadian information professionals should familiarize themselves with the fair dealing context and should not be overly conservative in dealing with works in our collections.

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