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Copyright @ CNA-Q

Copyright Act of Canada Exception

Fair dealing is one of the exceptions in copyright law. It permits certain uses of a work without having to ask permission from the owner/creator or having to pay a royalty for usage.

However, you need to conduct a fair dealing appraisal to evaluate whether your intended use of a copyrighted work fits the spirit of the law.

Supreme Court of Canada Decisions

While the Act lays out the purposes for fair dealing, it does not expand on fairness. The test for fairness has come out of case law.

The decision in CCH Canadian Ltd.v. Law Society of Upper Canada (2004) offered a two-step, six factor fair dealing test.

In 2012, the SCC clarified further, when it ruled in Alberta (Education) v. Canadian Copyright Licensing Agency that it was permissible for instructors to distribute short excerpts of copyrighted materials to students under certain conditions. The court also provided guidance on how the fair dealing factors should be applied to the use of copyrighted materials in an educational setting.

The 10% Rule Is Not Necessarily Fair

  • Many institutions and individuals in Canada adopted a 10% rule when it came to Fair Dealing
  • The supposed rule would allow the copying of up to 10% of a work
  • There was no legal precedent to support the apparent 10% rule
  • 10% should not be used as a guideline when practicing Fair Dealing   
  • In 2017, a judge ruled against York University, who had implemented a 10% rule after the institution split with Access Copyright
  • Justice Michael L. Phelan of The Federal Court of Canada ruled that: "York has not satisfied the fairness aspect of the quantitative amount of the dealing. There is no explaination why 10 per cent or a single article or any other limitations are fair."

Source: The National Post, July 12, 2017

Academic Advisory on Fair Dealing

The Association of Universities and Colleges of Canada (AUCC), the Association of Community Colleges of Canada (ACCC) and the Canadian Association of University Teachers (CAUT) have published revised guidelines for the use of copyrighted materials.

The fair dealing guidelines have been adopted by many Canadian academic institutions.

See also The Council of Ministers of Education Canada (CMEC).

Fair Dealing Guidelines

We also like University of Prince Edward Island's fair copying advice, the Fair Dealing Analysis tool from Athabasca University, and the University of Waterloo's Fair Dealing Flowchart. 

Fair Dealing Evaluation

FAIR DEALING EVALUATION Derived from the University of Waterloo, Copyright Guidelines, a work licensed under a Creative Commons Attribution-NonCommercial 2.5 Canada License. This flowchart guides you through the first step to evaluate whether your intended usage is lawful. The second flowchart considers the nature of your dealing and the continuum of fairness. You be the judge.

 

Fair Dealing and TPMs

The Copyright Act of Canada distinguishes between copy-control and access control TPMs. Password protection and encryption are examples which restrict access to works. Digital rights management technologies prevent users from making copies of works, e.g. eBooks.

The Copyright Act of Canada prohibits circumvention of digital locks. However it is not entirely clear whether the TPM provisions incorporate access control and take precedence over the fair dealing exception and the exceptions extended to educational institutions.