Notes on Canadian intellectual property law
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Fair dealing is a "user's right" that is an "integral part of the Copyright Act".[(CCH Canadian Ltd v Law Society of Upper Canada, 2004 SCC 13 at para 48 [CCH].)] Procedurally, it acts as a defence to a claim of infringement raised after infringement has been shown under s. 27 and s. 3.[(CCH at para 48.)]
The acts that constitute fair dealing are provided under s. 29 of the Copyright Act:[(RSC 1985, c C-42.)]
Research, private study, etc.
29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.
Criticism or review
29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if the following are mentioned:
(a) the source; and
(b) if given in the source, the name of the
(i) author, in the case of a work,
(ii) performer, in the case of a performer’s performance,
(iii) maker, in the case of a sound recording, or
(iv) broadcaster, in the case of a communication signal.
29.2 Fair dealing for the purpose of news reporting does not infringe copyright if the following are mentioned:
(iv) broadcaster, in the case of a communication signal.
The categories of activities that constitute fair dealing under ss. 29, 29.1, and 29.2 are an exhaustive list, and not merely illustrative.[(C.f. US Copyright Act, 17 USC §107 ("for purposes such as criticism, comment, news reporting, teaching …, scholarship, or research" [emphasis added]).)] However, "these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users’ rights".[(CCH at para 54.)] Instead, they should be given a "large and liberal" interpretation to recognize the balance between author's rights and user's rights.[(CCH at para 51.)]
The Supreme Court in CCH Canada Ltd v Law Society of Upper Canada provided a two-stage analysis for fair dealing.
First, the dealing in question must fall within one of the enumerated categories in s. 29 (discussed above).
Second, once the dealing has been determined to fall within one of the allowable purposes, the court will examine whether the dealing was "fair". CCH provided six factors that may be relevant to the fairness analysis, though these factors are not to be strictly and mechanically applied. The six factors are:
Moreover, since fair dealing is a user's right, the analysis should be conducted with the users' perspective in mind.[(Alberta (Education) v Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37 at para 22 [Access Copyright.)]
In examining the purpose, courts will make "an objective assessment of the user/defendant’s real purpose or motive in using the copyrighted work".[(CCH at para 54.)] If the defendant is not the user, there should be some link between the two - the defendant cannot simply hide behind the purpose of the ultimate end users in order to engage in an unfair dealing distinct from that of the user.[(Access Copyright at para 22.)]
Examples of acceptably "fair" connections between the defendant and the users include where library patrons request reproduction of works from the defendant library,[(CCH.)] where there is a 'symbiotic relationship' between teachers and students,[(Access Copyright.)] or where the defendant media company creates an online system to facilitate consumers' research.[(Society of Composers, Authors and Music Publishers of Canada v Bell Canada, 2012 SCC 36 [Bell].)]
Where the defendant is engaged in a demonstrably ulterior motive, such as a commercial motive, and is merely appropriating the users' purpose, the dealing may be unfair.[(Access Copyright at para 20.)] However, commercial motives are not unfair per se, as other factors may prevail (such as reasonable safeguards on the users' access to the works).[(See e.g. CCH; Bell.)]
In assessing the character of a dealing, courts will examine how the works were dealt with. As the Supreme Court put it in CCH:[(CCH at para 55.)]
If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing. If the copy of the work is destroyed after it is used for its specific intended purpose, this may also favour a finding of fairness. It may be relevant to consider the custom or practice in a particular trade or industry to determine whether or not the character of the dealing is fair.
For example, a library providing single photocopies for specific purposes to users is of fair character,[(CCH.)] as is streaming a limited length clip of music for previews.[(Bell.)]
Both the amount of the dealing and importance of the work allegedly infringed should be considered in assessing fairness. If the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement. … [T]he quantity of the work taken will not be determinative of fairness, but it can help in the determination. It may be possible to deal fairly with a whole work. As Vaver points out,[(David Vaver, Copyright Law (Toronto: Irwin Law, 2000).)] there might be no other way to criticize or review certain types of works such as photographs: see Vaver, supra, at p. 191. The amount taken may also be more or less fair depending on the purpose. For example, for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision. However, if a work of literature is copied for the purpose of criticism, it will not likely be fair to include a full copy of the work in the critique.[(CCH at para 56.)]
The "aggregate" amount of dealing is not relevant in this analysis, rather, the focus is on the proportion of the work taken.[(Bell at para 41.)] For example, 30 second excerpts from pieces of music several minutes long is a fair amount.[(Bell.)] Reproduction of an entire work at a lower quality (for example a reduced size newsprint or thumbnail) may also be fair.[(See e.g. Allen v Toronto Star Newspaper Ltd (1997), 78 CPR (3d) 115.)]
Alternatives to dealing with the infringed work may affect the determination of fairness. If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court. […] [I]t will also be useful for courts to attempt to determine whether the dealing was reasonably necessary to achieve the ultimate purpose. For example, if a criticism would be equally effective if it did not actually reproduce the copyrighted work it was criticizing, this may weigh against a finding of fairness.[(CCH at para 57.)]
In some circumstances, such as in elementary schools, purchasing multiple copies of a work may not be a true alternative, especially if one copy was already purchased.[(Access Copyright at para 32.)]
If the author has made the work available on the Internet and the defendant reproduced the work instead of pointing a link to the work, this may be unfair.[(Century 21 Limited Partnership v Rogers Communications, 2011 BCSC 1196.)]
The nature of the work in question should also be considered by courts assessing whether a dealing is fair. Although certainly not determinative, if a work has not been published, the dealing may be more fair 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.[(CCH at para 58.)]
Whether a work should be widely disseminated is the relevant question. The fact that a work is widely available does not mean that it is already widely disseminated.[(Bell at para 46.)]
Finally, the effect of the dealing on the work is another factor warranting consideration when courts are determining whether a dealing is fair. If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair. 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.[(CCH at para 59.)]
If the effect of the dealing is not to compete with, but to increase the sales of the work, it is indicative of a fair dealing.[(Bell at para 48.)] Some evidence should be led to prove negative effect.[(CCH at para 72.)]