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The copying of a limited, though not insubstantial, amount of a work for certain purposes may be considered “fair dealing” and, as such, will not require a user to ask permission of a copyright holder or to pay a royalty.
According to the Copyright Act (see Section 29), the allowable purposes of copying as fair dealing are: (a) research, (b) private study, (c) education, (d) parody or satire, (e) criticism or review and (f) news reporting. The last two purposes require appropriate mention of the source under the Copyright Act, though, at a university, academic integrity will normally require that sources be indicated.
At Laurentian, because we have a general copying license with Access Copyright, a fair dealing analysis for copying will most often not be necessary: under that license, faculty, staff and students at Laurentian can copy for most academic purposes much more of a work than is allowable under fair dealing.
The Copyright Act does not define the amount of copying that is allowable as fair dealing. Nevertheless, most fair dealing policies of Canadian educational institutions have adopted ten percent (10%) of a work as an amount that would normally be considered “safe” as fair dealing in their settings. That said, the limit of fair dealing with respect to a given work could be less or more than this, depending upon the characteristics of the work or the circumstances of its use. Such fair dealing policies also provide for distribution to all students in a course the copied content as fair dealing, a position supported by an important 2012 Supreme Court of Canada decision (a link to this is found below).
The Supreme Court of Canada proposed in 2004 a two-part test for determining whether a use can be considered to be fair dealing. The first part is to decide whether the use fits generally within one of the fair dealing purposes listed above; the second part, is to consider in detail the use of the work according to six factors: (a) the purpose of the dealing, (b) the character of the dealing, (c) the amount of the dealing, (d) alternatives to the dealing, (e) the nature of the dealing, and (f) the effect of the dealing (on the market for the work). In 2015 and in 2016, the Copyright Board further clarified the application of these factors in a fair dealing analysis (links to these documents are found below).
As Laurentian is a bilingual university, it may at times be necessary to translate a limited amount of a work for educational purposes. As translation is not a dealing covered by our Access Copyright license, it will be necessary to consider whether it can be done as fair dealing or whether it will be necessary to seek permission of the copyright holder (and potentially pay a royalty).
Key Fair Dealing Documents
The key documents of reference in Canada that speak to considerations of fair dealing, aside from the Copyright Act itself, include:
- The 2004 Supreme Court of Canada’s “CCH” decision (CCH Canadian Ltd. v. Law Society of Upper Canada,  1 S.C.R. 339, 2004 SCC 13), where fair dealing is stated as a “user right” and where the two-step, six-factor test for determining fair dealing is proposed.
- The 2012 Supreme Court of Canada’s “Province of Alberta” decision (Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37,  2 S.C.R 345), where, among other points, it was clarified that distribution of copies to students in a class may be considered fair dealing.
- The 2015 Copyright Board decision on the Provincial and Territorial Governments (2005-2014) tariff, where a number of fair dealing and general copyright matters are clarified, including the extent of a copyright collective repertoire, the practical definition of insubstantial copying, the more-correct application of the six factors used in evaluating fair dealing.
- The 2016 Copyright Board decision on the Elementary and Secondary Schools (2010-2015) tariff, where, among other points, it is clarified (in paragraph 288) that in an educational setting, for longer works, such as books, up to 5% will generally tend to fairness, 5-10% may or may not tend to fairness (this will depend on other factors than just the amount copied), and more than 10% will tend to unfairness.
Fair Dealing Policies at Universities
Many Canadian universities have formally adopted a local “Fair Dealing Policy” as a guide for members of the campus community in their use of works under copyright. Given that many of the typical uses of works at a university are, or could be, undertaken in ways consistent with fair dealing, adherence to a fair dealing policy allows such universities to operate without purchasing a general license from Access Copyright.
The success of such an approach will generally depend not only on establishing a fair dealing policy, but also on identifying a “copyright officer” able to make decisions in untypical copyright situations, on setting up a process and a fund for clearing copyright when a necessary use cannot conform to fair dealing, on a vigorous educational program to inform members of the campus community of best practices in working with copyrighted materials, and so on.
In 2012, the Association of Universities and Colleges of Canada (AUCC, now Universities Canada) published a model Fair Dealing Policy for Universities. The policy text reflects similar policies developed in the K-12 and community college sectors, and it was adopted, sometimes with local variations by many Canadian universities. AUCC then followed up in 2013 with a set of nine more-detailed fair dealing policy application guides for Canadian universities.
Laurentian has not to this point formally adopted a fair dealing policy, though an awareness of what is typically considered to be consistent with fair dealing can often be helpful nonetheless.
In situations in which fair dealing must be relied upon, the following FAQ may be helpful.
- FAQ on copyright from the AUCC (now Universities Canada)