Fair dealing

The Canadian concept of fair dealing is similar to that in the UK and Australia. The fair dealing clauses of the Canadian Copyright Act allow users to make single copies of portions of works for "research and private study." Similar to the fair use doctrine of United States copyright law, Canada's fair dealing is not seen as an infringement at all.

The 2004 ruling by the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada has gone far in clarifying the concept of fair dealing in Canada.

In considering fair dealing it makes the following general observation: "It is important to clarify some general considerations about exceptions to copyright infringement. Procedurally, a defendant is required to prove that his or her dealing with a work has been fair; however, the fair dealing exception is perhaps more properly understood as an integral part of the Copyright Act than simply a defence. Any act falling within the fair dealing exception will not be an infringement of copyright. The fair dealing exception, like other exceptions in the Copyright Act, is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests, it must not be interpreted restrictively. ... 'User rights are not just loopholes. Both owner rights and user rights should therefore be given the fair and balanced reading that befits remedial legislation.'"

It then establishes six principal criteria for evaluating fair dealing.

1. The Purpose of the Dealing Is it for research, private study, criticism, review or news reporting? It expresses that "these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users' rights."
2. The Character of the Dealing How were the works dealt with? Was there a single copy or were multiple copies made? Were these copies distributed widely or to a limited group of people? Was the copy destroyed after its purpose was accomplished? What are the normal practices of the industry?
3. The Amount of the Dealing How much of the work was used? What was the importance of the infringed work? Quoting trivial amounts may alone sufficiently establish fair dealing. In some cases even quoting the entire work may be fair dealing.
4. Alternatives to the Dealing Was a "non-copyrighted equivalent of the work" available to the user? Could the work have been properly criticized without being copied?
5. The Nature of the Work Copying from a work that has never been published could be more fair than from a published work "in that its reproduction with acknowledgement could lead to a wider public dissemination of the work - one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair."
6. Effect of the Dealing on the Work Is it likely to affect the market of the original work? "Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair." A statement that a dealing infringes may not be sufficient, but evidence will often be required.

"These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing. In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair."

The Association of Universities and Colleges of Canada (AUCC), a well established lobbying group representing the educational sector in Canada is of the opinion that making a copy of the following for the purposes of private study and research is fair dealing:

• a periodical article of a scientific, technical or scholarly nature from a book or a periodical issue containing other works;
• a newspaper article or entry from an encyclopedia, annotated bibliography or similar reference work; or
• a short story, play, poem, or essay from a book or periodical containing other works.

The AUCC believes that faculty members or students can make a copy of parts of a book or other complete works under fair dealing. The AUCC also maintains that fair dealing applies not just to photocopying but also to other methods of reproduction ? including the making of copies onto slides, microfiche or transparencies. For multiple copies and for copying in excess of the extent mentioned above, AUCC recommends acquiring licences from Access Copyright, the Canadian Copyright Licensing Agency, one of the copyight licensing societies or copyright collectives in Canada.

*Copied from Wikipedia under the GNU Free Documentation License:

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