Protecting our fair dealing rights

Samuel E. Trosow

The federal government is currently conducting a five year review of the Copyright Act. While there are several important policies that will be discussed, the most significant for the educational community is fair dealing. It is also likely to be the most contentious. Fair dealing is the limited right to make copies (present performances) without payment or permission and is intended to add an element of balance to our copyright laws between the rights of owners and users of works.

Prior to 2004, fair dealing rights were very limited, but this changed with the Supreme Court's decision in CCH v Law Society of Upper Canada. In that case the unanimous court held that while fair dealing is considered a defense to an action for infringement, it is better thought of as a users' right which is an integral and underlying part of the Copyright Act. The court also emphasized that the fair dealing categories should be given a broad and flexible interpretation so that users' rights not be unduly restricted. More recently the court has clarified and expanded on fair dealing and the 2012 amendments to the Copyright Act added "education" as one of the fair dealing categories.

Unlike in the United States (where fair dealing categories are open-ended), Canadian fair dealing has been limited to specific categories of uses; research, private study, criticism, review and news reporting. The 2012 amendments added the categories of education, parody and satire. In addition to first coming within one of these categories, fair dealing also requires an analysis of the six fairness factors developed by the CCH court. They are:

  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;
  6. The effect of the dealing on the work.

In adopting a flexible approach to fair dealing, it is important to recognize that these factors are considered in a holistic manner from the point of view of the end user. This is not a list that must be checked off, no one factor takes precedent over the others, and it is always important to consider the context of the use and all of the surrounding circumstances.

A more detailed set of copyright guidelines that further explain these fair dealing factors and other copyright issues has been developed for the campus community and is online here.

Parliament and the courts have created a balanced system that gives educators, researchers and students some needed protections against the threat of infringement liability for typical day to day teaching and learning activities. But these gains are now being threatened. The publishing industry and other owners' rights groups had lobbied against adding education as a fair dealing category and they are currently engaged in a campaign to have it removed as part of the review. In trying to undo some of the important reforms of the last decade, the industry wants to return to the days when educational copying was limited to situations where costly licenses were first obtained.

As both users of existing works and creators of new ones, we understand the importance of maintaining an appropriate balance in the Copyright Act. It is important for all members of the educational community to recognize the important role that fair dealing has played in the promotion of teaching, learning, scholarship and research. Our voices need to be heard in the current legislative review of the Copyright Act. Groups like the Canadian Association of University Teachers, the Canadian Association of Research Libraries, the Canadian Federation of Students and other groups have remained active on this issue and they deserve our support in preserving these important rights. Watch for more details about how you can become involved in these efforts.

Samuel E. Trosow is an associate professor jointly appointed in the Faculty of Law and the Faculty of Information and Media Studies