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COPYRIGHT AND FAIR DEALING


Here at the University of Ottawa, when it comes to copyright, one section of the Copyright Act we rely on, which allows us to use copyright-protected works without obtaining permission or paying royalties… is known as the fair dealing exception. In a previous decision, the Supreme Court of Canada defined what constitutes “fair dealing”. Let’s see how: The Law Society of Upper Canada’s Great Library, whose clients are mostly lawyers, has a long-standing practice of allowing on-site patrons to make photocopies of library material. In 1993, the publishers CCH Canadian Limited, Carswell Thomson Professional Publishing and Canada Law Book Inc., alleged that these practices were a violation of their copyright. The case eventually reached the Supreme Court of Canada, which released its decision in 2004. THE VERDICT: The Supreme Court decided that these practices were not a violation of the publishers’ copyright. First, The Supreme Court of Canada clarified that the Law Society of Upper Canada allows its members to use the publications for RESEARCH and PRIVATE STUDY purposes. In the Copyright Act, it is specified that the use of copyright-protected works for one of the following eight fair dealing purposes does not infringe copyright: research, private study, criticism, review, news reporting, education, satire, or parody. Secondly, In addition to meeting one of the eight purposes of the fair dealing exception of the Copyright Act the use was, according to the judgment, fair. Fair? The Supreme Court of Canada considered the following six factors in its judgement : 1) the purpose of the dealing; 2) the character of the dealing; 3) the amount of the dealing; 4) alternatives to the dealing; 5) the nature of the work; and 6) the effect of the dealing on the work. Based on this decision, the fairness of the dealing can be evaluated via a two-step test. First, one must look at the “purpose” of the dealing. Is the work going to be used for research? For private study? For commercial use? For public distribution? Then, one must pay attention to the fairness of the dealing, by considering the six factors from the Supreme Court’s previous decision, which are : the purpose, the character, the amount, the alternatives, the nature and the effect of the dealing. Amount? Subject to the fairness test described by the Supreme Court of Canada, a 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 short excerpt may generally be interpreted as, for example: – approximately 10% of a copyright-protected work; – a chapter from a book; – an article from a periodical; – an entire artistic work; – an entire newspaper article or page, etc. Does your use seem legitimate? Uncertain? Consider : the alternatives to copyright-protected material listed on our website, or obtaining permission from the copyright holder. If you would like help in obtaining permission, simply submit a filled-out Copyright Materials Log, available on our website. Questions? Communicate with us!

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