What is Fair Dealing, and Why Turn to It?
As many faculty members and students know, it is not always possible to find alternatives to certain materials under copyright, such as works in the public domain that are free to use, or open-access publications. If this is the case, you might have questions about whether those works, or sections of the material, can be used without infringing on a creator’s copyright, and if so, how?
Fortunately, in Canada, there is often recourse available under the fair dealing provision in section 29 of the Copyright Act. This allows limited uses of a work protected by copyright without the need to ask the copyright holder for permission or pay copyright royalties, albeit under certain conditions.
Fair dealing is not required when only a very small amount of the work is used (called insubstantial use), or if there are alternative materials a user can turn to instead, such as work in the public domain, published open access, or materials available under our university library licence that allows for the specific, intended use.
Why is Fair Dealing Important in higher education?
Making use of fair dealing as a fundamental user right at uOttawa and other institutions of higher learning is a way of helping to ensure that the fair dealing exception continues to be exercised and relied upon as a valuable means of disseminating knowledge in educational settings in Canada.
Turning to fair dealing when using alternatives to the use of material under copyright is not possible has many benefits for instructors, researchers, and students alike.
For instructors, this exception allows for the display and sharing of essential materials that enhance student learning. It also allows students and researchers to make use of materials needed to convey specific ideas in their work, provided the fair dealing assessment allows for it. Researchers also benefit from fair dealing, as it facilitates their study and use of works essential to their research, allowing them to build upon existing knowledge without barriers, supporting academic innovation and intellectual exchange.For students, in addition to the other benefits included here, access to materials under fair dealing can reduce costs associated with purchasing expensive textbooks, when only a short excerpt is necessary.
Fair Dealing: The ‘How-to’
For those who wish to access their user rights and make use of the fair dealing exception, there are two ‘tests’ to pass, consisting of six fair dealing factors, in order to allow for reliance on fair dealing for a specific use of material under copyright. The first of these tests is determining whether the purpose of the dealing falls under one of the approved categories. These potential purposes are: research, private study, education, parody, satire, criticism, review, or news reporting.
Once the purpose is determined to fall under one of these categories, the second step of the test is to evaluate the remaining five factors considered together as a whole to determine whether the specific use of the work is more or less “fair.” These are: The character of the dealing (e.g., was it a single use or ongoing? How and where was it distributed?), the amount of the dealing, alternatives to the dealing (e.g., public domain, open access or licensed materials; was the use needed to achieve the user’s purpose?), the nature of the work (e.g., was it published or unpublished?), and finally, the effect of the dealing (i.e., is it competitive with the copyright holder’s market for the work?).
With respect to these factors, although the specific amount considered “fair” is not indicated in the Copyright Act, at uOttawa, this would be considered a short excerpt, defined as no more than 10% of the work. If the use is of a photograph or other image, however, fair dealing might encompass the use of the entire image, depending on the character of the dealing and other factors. For example, a professor may show a photograph subject to copyright in a classroom, as the distribution is not outside the University setting. This guideline provides more clarity, and allows for the balance between protecting the rights of both copyright-holders and users.
As with all use of third-party materials, it remains important to cite your source in keeping with academic integrity.
Learn more, and make your voice heard
As you have read here, fair dealing is an important way of maintaining the balance between academic freedom for users and the protection of the rights of creators. This prevents undue restrictions on the use of learning and teaching materials in Canada, and helps support a robust intellectual climate.
Unfortunately, fair dealing is not universally supported, particularly by corporate interests, which tend to focus more on owner rights than user rights.[1] Changes to reduce or remove Canadian user rights have the potential to create barriers to academic freedom, and to lead students to pay more than they currently do for educational materials. However, members of the uOttawa community can make their voices heard by sending a letter to their MP in support of educational fair dealing. Every letter helps ensure that our government understands the importance of fair dealing within the University of Ottawa community and beyond.
For more information about fair dealing, please see the uOttawa Fair dealing guidelines on the Copyright Office website. If you have any questions about fair dealing, conducting a fair dealing assessment, or any other matter related to copyright, please contact the Copyright Office at [email protected].
[1] Supreme Court ruling a victory for students and post-secondary education. CAUT. (2021). CAUT.ca.