Fair dealing is a provision in the Canadian Copyright Act, similar to fair use in the U.S. It allows the copying or communication (digital distribution) of a substantial portion of a copyrighted work, or in some cases an entire work, without the permission of the copyright owner. Fair dealing applies to many uses of works in the educational context.
Fair dealing for the purposes of research, private study, criticism, review, news reporting, education, parody, and satire is not infringement of copyright. If the copying or communication is done for one or more of these purposes and qualifies as fair, it does not infringe copyright. Fair dealing is an open-ended and flexible provision. The Supreme Court has instructed that the above purposes must be given a broad and liberal interpretation. That means that fair dealing applies to all users of copyrighted works and in many contexts.
The determination of the fairness is dependent on an assessment of all the relevant factors in a given situation and the application of the six-factor fairness test provided by the Supreme Court in 2004. All six factors need to be applied. The assessment takes into account the overall fairness or unfairness of a dealing (or use) with no one factor deciding the outcome. Some factors may even tend towards unfairness and still allow a finding of fairness. Additional information beyond these factors may help determine the outcome as well.
The factors are as follows:
The Purpose of the Dealing: Is the dealing for one of the required purposes? Is the use for a profit or a non-profit educational purpose? Is it for entertainment purposes? Is it to encourage discussion and engagement, such as in a blog post?
The Character of the Dealing: Was a single copy made or were multiple copies made? Were copies widely distributed or posted online, or limited to a small group?
The Amount of the Dealing: How much of the work was copied compared to the work as a whole? It can still be fair dealing in some circumstances to use a whole work.
Alternatives to the Dealing: Were there suitable non-copyrighted equivalents of the work that could have been used instead? Could your purpose have been fulfilled without needing to make a copy?
The Nature of the Work: Unpublished or confidential works will likely need to be treated differently than published ones. Nonetheless, it may be fair in some circumstances to make an unpublished work available under fair dealing, especially if there is a public interest in providing it.
Effect of the Dealing on the Work: Is the dealing likely to substantially affect or replace the market for the original work? The greater the effect, such that it discourages the production of a work, the less fair the dealing. The availability of a licence, or the work for sale, does not preclude a finding of fair dealing.
Additional information on copyright and fair dealing is available in the Copyright Basics section.
Fair Dealing Guidelines
The MacEwan University Fair Dealing Guidelines ("Guidelines") cover the making and distribution of copies of copyrighted works by faculty and staff for students under fair dealing. The Guidelines represent a safe harbour interpretation of fair dealing in the educational context.
In some cases, using a selection that exceeds the Guidelines may still qualify as fair dealing. Consult with the Copyright Specialist to help with this determination. Fair dealing assessments and approvals will be made based on all relevant information.
MacEwan University Fair Dealing Guidelines
Reproduction and Communication of Copyrighted Works by Faculty and Staff for Students
Pursuant to MacEwan University Policy D7215, Reproduction and Use of Copyrighted Material
These Fair Dealing Guidelines (“Guidelines”) apply to all faculty members and staff persons of MacEwan University. These Guidelines are in place to provide guidance on the use of copyright-protected works under fair dealing and to provide reasonable safeguards for the owners of copyright-protected works in accordance with the Copyright Act and Supreme Court decisions.
The fair dealing provision in the Copyright Act permits use of a copyright-protected work without permission from the copyright owner or payment of copyright royalties. Whether a use of a copyright-protected work qualifies under fair dealing is dependent on an evaluation of all relevant factors in a given situation. Fair dealing will apply to copying and communicating of works made in accordance with these Guidelines. Copying or communicating beyond the quantitative limits in these Guidelines may, or may not, be fair dealing and may require permission from the copyright holder.
To qualify for fair dealing, two tests must be passed.
First, the "dealing" must be for a purpose stated in the Copyright Act: research, private study, criticism, review, news reporting, education, parody and satire. The Supreme Court has determined that educational use of a copyright-protected work passes this first test.
The second test is that the dealing must be "fair." In landmark decisions in 2004 and in 2012, the Supreme Court of Canada provided guidance as to what this test means in schools and post-secondary educational institutions.
1. MacEwan University faculty members and staff persons may communicate and reproduce, in paper or electronic form, short excerpts from a copyright-protected work for the purposes of research, private study, criticism, review, news reporting, education, parody and satire.
2. Copying or communicating short excerpts from a copyright protected work under these Guidelines for the purpose of news reporting, criticism or review should mention the source and, if given in the source, the name of the author or creator of the work.
3. A single copy of a short excerpt from a copyright-protected work may be provided or communicated to each student enrolled in a class or course:
a. as a class handout;
b. as a posting to a learning or course management system (such as Blackboard or eReserves) that is password protected or otherwise restricted to students of MacEwan University; or
c. as part of a course pack.
4. A short excerpt includes:
a. up to 10% of a copyright-protected work (including a literary work, musical score, sound recording, and an audiovisual work)
b. one chapter from a book
c. a single article from a periodical
d. an entire individual artistic work (including a painting, print, photograph, diagram, drawing, map, chart, and plan) from a copyright-protected work containing other artistic works
e. an entire newspaper article or page
f. an entire single poem or musical score from a publication containing other poems or musical scores
g. an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work
5. Copying or communicating multiple short excerpts from the same copyright-protected work, with the intention of copying or communicating substantially the entire work, is prohibited.
6. Copying or communicating that exceeds these Guidelines may be referred to the MacEwan University Copyright Specialist or designate for an evaluation. An evaluation of whether the proposed copying or communication is permitted under fair dealing will be made based on all relevant circumstances.
7. Any fee charged by the educational institution for communicating or copying a short excerpt from a copyright-protected work must be intended to cover only the costs of the institution, including overhead costs.
Please Note: These Guidelines do not restrict copying or communicating of copyright-protected works permitted under an arrangement or contract entered into by MacEwan University with a publisher, publisher’s representative or under contract arrangements, such as for Library databases (“Third Party Copying Arrangement”). In the event of a conflict between these Guidelines and a Third Party Copying Arrangement, the terms of the Third Party Copying Arrangement will apply.
Tips for using the Guidelines:
- You should use only as much as is necessary to achieve your purpose.
- Up to 10% of a work may be used - for example, this can be selections from multiple chapters that add up to 10% or less of a work or a selection of clips from a video that amount to 10% or less from the source.
- A single chapter of a work may be used, even if it exceeds 10% of the work. However, in the unusual case of a title that has very few chapters, the use of a single chapter may not be fair.
- The fair dealing amount is assessed from the student's perspective. For example, an instructor may distribute a different chapter from the same book to each of three courses or sections in a given term and be within the terms of the Guidelines - each student receives only one chapter from the book.
- Portions of video and audio works may be copied and communicated under the Guidelines - however, you may not break a technical protection measure (TPM or "digital lock") if one exists on a work in order to make the copy. Contact the Copyright Office for additional options for using works protected by TPMs.
- Works may be provided in paper or digital format. "Communicating" refers to making a work available digitally.
- Both required and optional readings may be distributed under the Guidelines.
- Coursepacks are a collection of readings that can include fair dealing content. Binding together or collating excerpts does not affect the ability of these readings to qualify for fair dealing under the Guidelines. Coursepacks can be created by a faculty members or university staff. The Copyright and Licensing Office will handle any required permissions for coursepacks sold through the MacEwan University Bookstores.
- A fee may be charged for providing materials as long as it only covers costs, including overhead costs, of producing and distributing the materials.
- Whenever possible, provide citations of the source of works used.
- Library database content is governed by the terms of the database contract. Some contracts allow certain uses - such as including a copy in a coursepack and posting articles to Blackboard or eReserves. Other contracts allow only direct access. Send citations to the Copyright Office for a quick assessment of the database contract terms. Alternatively, provide your students a persistent link to the content.