the end-user's right, in certain situations, to deal with a copyright-protected work without permission from or payment to the copyright holder.
Fair dealing is set out in sections 29, 29.1, and 29.2 of the Copyright Act. According to the Supreme Court of Canada, fair dealing is an integral part of the scheme of copyright and is “always available” if the requirements are met.
To qualify for fair dealing, the dealing must be for an allowable purpose and fair.
To qualify for fair dealing, the dealing must be for an allowable purpose set out in the Copyright Act:
The Supreme Court of Canada has directed that the allowable purposes be given a “large and liberal interpretation”. Research, for example, is not limited to non-commercial or private contexts.
If the dealing is for criticism, review, or news reporting, fair dealing requires the source of the work (and if given in the source, the name of the author) to be mentioned.
The Copyright Act does not define what will be “fair”. Fair dealing is context-specific and depends on the facts of each case.
In CCH Canadian Ltd. v. Law Society of Upper Canada, the Supreme Court of Canada articulated six factors that provide a useful analytical framework to assess the fairness of a dealing: the purpose of the dealing, the character of the dealing, the amount of the dealing, alternatives to the dealing, the nature of the work, and the effect of the dealing on the work. These six factors are not exhaustive and not all factors will necessarily arise in every case of fair dealing.
Since CCH, the Supreme Court of Canada has elaborated on these factors in subsequent decisions, including in Alberta (Education) v. Access Copyright, SOCAN v. Bell Canada, and York University v. Access Copyright.
To qualify as fair dealing, two tests must be passed: the dealing must be for an allowable purpose set out in the Copyright Act and the dealing must be “fair”.
The University’s Fair Dealing Guidelines were developed to actualize fair dealing for the University’s students in fair manner.
The Guidelines assume that the user intends to use a copyright-protected work in the context of an educational activity, such as in a controlled educational setting (e.g. the classroom or Canvas LMS) for an audience consisting primarily of students enrolled in a course. Since not all uses of materials require permission from or payment to a copyright owner, the Guidelines also make certain other assumptions, including:
In addition to fair dealing, the Copyright Act also contains several exceptions that apply specifically to not-for-profit educational institutions. Even though fair dealing is “always available” and recourse to a specific exception is not necessary where fair dealing applies, you might consider whether one of the specific exceptions permits your intended use.
The Library’s Copyright team is an important resource. We can help you determine whether the University already has an existing licence or agreement that covers your intended use. The Library’s Copyright experts can also work with you to secure appropriate permissions and answer any questions you may have about fair dealing and these guidelines: copyright@ontariotechu.ca.
If your intended use of a work falls within the Fair Dealing Guidelines, you may copy a “short excerpt” from a copyright-protected work, such as one chapter from a textbook, one article from a journal volume, one image from a coffee table book, or up to 10% of a work, as long as the excerpt contains no more of the work than is required to achieve the allowable purpose.
In some circumstances, fair dealing requires attribution. When a short excerpt from a copyright-protected work is used for the purpose of news reporting, criticism, or review, the Copyright Act requires that the user mention the source and, if given in the source, the name of the author or creator of the work. While the Copyright Act does not require attribution of this kind when the use is for the purpose of research, private study, or education, appropriate citation may still be warranted or required by academic conventions.
Often, yes. Providing hyperlinks to library resources can be an effective and preferable way to make copyright-protected content available to students for their educational use within the scope of existing University licences. If providing a hyperlink to the licensed content is appropriate for your intended use, you won’t need to consider the Fair Dealing Guidelines.
A mere hyperlink to another website’s public, non-infringing content may also be appropriate but check the website’s terms and conditions before doing so. Sometimes, websites contain terms of use that prohibit third parties from linking to them. You should also consider the content of the website and whether it could be considered defamatory.
No. Section 41.1 of the Copyright Act prohibits the circumvention of technological protection measures (TPMs). If you circumvent an access control, you will likely be in violation of the anti-circumvention provisions of the Copyright Act. Circumventing a copy control may disqualify you from some of the exceptions in the Copyright Act. The Fair Dealing Guidelines do not permit the circumvention of digital locks.
It depends on the circumstances. You do not need to seek permission to play a song or a video for educational (not entertainment) purposes to an audience consisting primarily of university students on the premises of the university if the material was obtained lawfully and you have no reasonable grounds to believe that it is infringing. However, you cannot copy or record the song or video without permission, and you should always check the terms of use, if applicable, for any restrictions. If there are digital protections on the song or video, you cannot disable them.
Contact us at copyright@ontariotechu.ca
