The fair dealing exception to infringement in the Canadian Copyright Act allows you to use copyright-protected works without permission from copyright holders, but only for specific purposes and within reasonable limits.
Your proposed copying must pass two tests:
Copying course readings for your students and developing instructional resources are considered educational use.
2. Your use of the work must be fair.
Canadian copyright law does not define fairness, but see the following section for more information.
The Canadian Copyright Act does not define fairness, but several landmark rulings from the Supreme Court of Canada can help guide decisions about copying under the fair dealing exemption.
There are six factors that may influence fairness, but there are no concrete rules.
This section is not legal counsel. The following section includes several questions to help you evaluate your proposed copying, but the unique circumstances of each situation may change whether it would be considered fair. If you are unsure whether your proposed copying is permitted, or have additional questions about the fair dealing exemption, please contact us.
This question simply restates the first test. Copying course readings for your students and developing instructional resources fall under educational use, while student work may fall under research or private study.
The amount of the copying
How much will you copy? How much of the total work does the copying represent?
You can copy short excerpts of copyright-protected works under the exemption. Landmark decisions, especially Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), have helped define short excerpts and establish safe copying limits for the exemption. The Centennial College Fair Dealing Policy for Copyright-Protected Work was developed with reference to these limits.
The character of the copying
How broadly will you distribute the work? How will you restrict access?
Copying tends more towards unfairness as you you make and distribute more copies, especially when you do not take reasonable measure to restrict access to them. You should make no more copies than are necessary, usually one copy per student. Posting course readings on eCentennial restricts access through password protection, but you should not post copies on publicly accessible course websites. When you hand out photocopies of works in class, you have taken reasonable precautions by distributing copies only to your students—you are not responsible for how they may use those copies after they have left class.
Alternatives to copying the work
Can you access the same work, or an equivalent, through library databases? Are there non-copyrighted or freely available alternatives?
The exemption only covers essential copying, so you should ensure that students cannot otherwise access the work. You should also check for other works that might accomplish the same purposes, including open access publications or works that have entered the public domain.
The nature of the work
Has the work been previously published?
You should never copy and share unpublished or confidential works, since they were probably not intended for distribution in the first place. Should you need permission to copy unpublished or confidential works, please contact us.
The effect of the copying on the work
Will your copying negatively impact the market value of the work?
This is the most commonly misunderstood of the fair dealing factors. Your proposed copying should not make the work less valuable to potential consumers—to all consumers, not just your students. This does not mean that you should not deprive creators of payments they would otherwise receive from your students; that is the expressed purpose of the fair dealing exemption. You should also ensure that the copies you create will not compete with the market for the original work, such as by uploading scanned copies on publicly accessible websites.
For more details about educational institutions and fair dealing, please read Michael Geist's The Supreme Court of Canada Speaks: How to Assess Fair Dealing in Education.