Monday, February 13, 2017

The Importance of Fair Dealing

Fair use is for everybody
Image courtesy of Fair Use Week
Fair dealing, particularly for the purposes of education and research, has a major impact on universities and on how faculty members, staff, and students can use and provide access to materials. The risk of infringing copyright through an over-broad interpretation of fair dealing has led many universities to be cautious in how fair dealing is applied, only rarely venturing beyond their conservative fair dealing guidelines.  However, when practices remain more conservative than recent court decisions suggest the law might allow, those practices risk establishing norms that might lead to an effective redrawing of boundaries at more restrictive levels. Fair dealing rights could easily become a victim of “use them or lose them.”

Fair dealing rights are an important means of determining the appropriate limits for using copyright-protected material without asking permission or paying the copyright holder.  If copyright law is truly to serve the public interest, then it is crucial that the interests of creators in receiving appropriate compensation be kept in balance with ensuring users can appropriately benefit from access to and use of protected works.  In maintaining this balance, fair dealing is the great leveler.

Despite this important role, the Copyright Act devotes very little space to fair dealing.  The Act states only that fair dealing for certain identified purposes does not infringe copyright.  We are told that IF a given use of a copyright-protected work is fair dealing, THEN that use is NOT copyright infringement, but the statute does not help us determine whether a particular use deals with that work fairly.

The courts have stepped in to provide guidance on what counts as fair dealing.  The Supreme Court of Canada in CCH Canadian Ltd v. Law Society of Upper Canada (2004 SCC 13) established a six-factor test for fair dealing.   However, even with the assistance of this test, the court made it clear that all such determinations of fair dealing are interpretations that are best made on a case-by-case basis.

For organizations like universities that are reproducing and distributing a large number of short excerpts from copyright-protected works as course readings, it could be onerous to apply such an analysis to each and every excerpt.  To process such a high volume effectively, universities often adopt a set of “fair dealing guidelines” to assist in making a quick decision on whether or not a proposed use of copyright-protected material likely counts as fair dealing.  These guidelines, while not intended to be equivalent to a full analysis, provide a shortcut designed to give an appropriate result in a large majority of cases.

Considering the case-by-case nature of fair dealing analysis and the interpretations that are involved, the only definitive determination of whether a particular use really is fair dealing is one made by a court of law.  While it might be more comforting to have some legally recognized “bright lines” to assist users in making a such a definitive determination, there would invariably be a cost to having strict boundaries on the scope of fair dealing.  Defined lines that limit the scope or latitude of how fairness can be interpreted in a particular set of circumstances would only restrict the range of cases in which fair dealing might reasonably be applied.

It is important for all of us to understand and appreciate the impact and value of our fair dealing rights.  In late 2017, the federal government will begin a review of the Copyright Act, and publishers have already begun to lobby in an effort to persuade parliament to implement additional limits on fair dealing for educational purposes.  Those who support maintaining the current latitude in fair dealing must ensure that their voices are heard.

User rights like fair dealing are in place to serve the public interest, but the broader benefit to the public will only be realized when those rights are widely known and fully exercised.
If you are interested in learning more about fair dealing, the Copyright Office is hosting a number of events during Fair Dealing Week (February 20-24).  More information about these events is available here.

For more information about copyright at the University of Alberta, check out the Copyright Office website, or email our help desk at copyright@ualberta.ca.




Adrian Sheppard  - Director, Copyright Office





Adrian has been the Director of the University of Alberta’s Copyright Office since April 2015.  One role of the Copyright Office is to educate and inform U of A students, faculty and staff on issues related to copyright.  Adrian has an LL.B. from the University of Victoria.

Note: This post is intended to provide information and perspective about copyright issues, but should not be considered as legal advice.

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