Fair Dealing

Fair dealing is an exception in the Copyright Act (sections 29, 29.1 and 29.2) that allows users to copy a short excerpt of a work for the purposes of research, private study, education, criticism, review, news reporting, parody, or satire. At Centennial College, copies made using the fair dealing exception are subject to the Centennial College Fair Dealing Policy for Copyright-Protected Work.

Although the term “fair dealing” is not defined in detail in the legislation, there is some guidance provided in the fair dealing sections of the Copyright Act. Additionally there are six criteria to be used in determining whether the use of a work is fair, as proposed in the landmark Supreme Court of Canada case CCH Canadian Limited v. Law Society of Upper Canada. These six criteria to use for determining whether use of a work is fair dealing are:

1. The purpose of the proposed copying, including whether it is for research, private study, criticism, review, news reporting, parody, satire or education.
2. The character of the proposed copying, including whether it involves single or multiple copies and whether the copy is destroyed after it is used for its specific intended purpose.
3. The amount of the dealing from the individual user’s perspective, including the proportion of the work that is proposed to be copied and the importance of that excerpt in relation to the whole work.
4. Alternatives to copying the work, including whether there is a non-copyrighted equivalent available.
5. The nature of the work, including whether it is published or unpublished.
6. The effect of the copying on the work, including whether the copy will compete with the commercial market of the original work.

Please note that the fair dealing exception only applies if the work copied is cited with at least the source of the material and the name of the creator (if the name of the creator is available) so it is very important to include citations with any fair dealing copies.

Copying under the fair dealing exception may not apply if a license agreement is in place or a digital lock (TPM) prevents access to the resource.

Educational Exceptions

An educational institution or people acting under its authority (e.g., faculty members, teaching staff, instructors), are permitted to do the following:

• Works available through Internet (section 30.04 of the Copyright Act)
  • Reproduce and communicate works available on the Internet for educational purposes to students enrolled in a class (e.g., handing out the work in hardcopy, posting the work on a learning management system), provided that:
    1. The works are available online openly and not protected by “digital locks” such as a paywall or password-protection.
    2. There is no clearly visible notice specifically prohibiting the intended use of the work (this notice needs to be more than just the copyright symbol “©”).
    3. The work has not been made available on the Internet in violation of the copyright owner’s rights.
    4. The work is cited when you use it, with the source of the materials and the name of the author or creator if their name is available.

• Reproduction for display (section 29.4 (1) of the Copyright Act)
  • Reproduce a work or do any other necessary act, in order to display it in the classroom for educational purposes as long as the work is not already commercially available in an appropriate format. This would include, for example, scanning an image in a textbook for inclusion in a PowerPoint presentation.

• Reproduction for tests or exams (section 29.4 (2) of the Copyright Act)
  • Reproduce, translate, perform or broadcast materials protected by copyright on university premises for a test or exam, as long as the work is not already commercially available in an appropriate format.

• Showing a film in class (section 29.5 of the Copyright Act)
  • Show a film or other cinematographic work (as long as it is a legal copy) in the classroom, as long as it is for educational or training purposes and as long as the work is not an infringing copy.

• Reproduction for lessons by telecommunication (section 30.01 of the Copyright Act)
  • Lessons, including tests and exams, may be recorded and communicated to students enrolled in the course, provided that:
    1. The recording or copy is destroyed within 30 days after the end of the course
    2. The institution takes measures to limit the audience to only students enrolled in the course in which the lesson was given.
    3. The institution takes measures to prevent further copying and distribution of the lesson by the students in the course.

• Performances, sound recordings, broadcasts and telecommunication (sections 29.5 and 29.7 of the Copyright Act)
  • Performances of works such as plays or music can be performed live by students without infringing copyright if the performance takes place on the premises of the school and the audience is primarily students of the school or instructors.
  • Play sound recordings for students on the premises of an educational institution for educational purposes, as long as the recording is not an infringing copy.
  • Play radio or television programs live when they are being broadcast. It has been interpreted that this, arguably, includes webcasts.

• News and commentary (section 29.6 of the Copyright Act)
  • Instructors may copy news and news commentary from radio and television broadcasts for educational or personal use. The copy can be shown in a classroom to students for educational purposes.

Exceptions for Libraries, Archives and Museums

Libraries, archives and museums may copy published and unpublished works protected by copyright in order to maintain and manage their collections. Examples of using this exception include:

• making a copy for insurance purposes;
• making a copy to preserve an unpublished or rare original work that is deteriorating, damaged or lost OR at risk of deteriorating or becoming damaged or lost;
• making a copy in an alternative format if the original format is obsolete or the technology required to use it is obsolete or becoming obsolete.

Please note that these exceptions do not apply if an appropriate copy is commercially available. Also, any intermediate copies made under these exceptions must be destroyed as long as the intermediate copy is no longer needed.

Libraries, archives and museums may also copy an entire article of a scholarly, scientific or technical nature provided the copy is used for a fair dealing purpose. Articles in a newspaper or periodical which are not scholarly, scientific or technical can also be copied if the article is at least 12 months old at the time the copy is made and provided the copy is used for private study or research purposes.

Libraries, archives and museums may provide a copy of a work based on exceptions in the Copyright Act (sections 30.1, 30.2, 30.3, 30.4 and 30.5) to a person who has requested the work through another library. The copy can be provided in an electronic format, provided that measures are taken to ensure the following:

1. The patron prints no more than one copy.
2. The patron does not communicate the copy to another person.
3. The electronic copy is not used for more than five business days after it is first used.

Persons with Perceptual Disabilities

Persons with a perceptual disability (i.e., with difficulty reading or hearing) or a person acting on their behalf, may copy a work protected by copyright in alternate formats such as braille, talking books or sign language. This exception in the Copyright Act (section 32) does not apply to a cinematographic work, such as a movie. Additionally, making a copy in an alternate format is not permitted by this exception if the work is already commercially available in an appropriate alternate format.

The section "Exceptions in the Copyright Act" is adapted from the University of Saskatchewan Copyright website is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.