As Amanda Wakaruk, Celine Gareau-Brennan, and Matthew Pietrosanu have found in their research, copyright law is often not only confusing to navigate, but tends to be anxiety-provoking for researchers, instructors, and students. So prevalent is anxiety related to copyright that Wakaruk, a copyright librarian, has met with students who fear copying book chapters for their own use, as well as faculty members who find the copyright provisions in publishing agreements stressful—a phenomenon known as “copyright chill.”
Fortunately, there are some points to keep in mind to help counteract these concerns. One of these is that with a bit of training or consultation, members of the community can become familiar with the basics of copyright, and navigate it more easily. Another point to keep in mind is that many copyright determinations are not binary, or black and white, but nuanced and multifactorial. One such example of this nuanced decision-making for researchers, professors, and students is fair dealing.
When should I use fair dealing?
Fair dealing is not needed where an insubstantial part of a work is being used. Though the notion of substantiality isn’t defined in the Copyright Act, in a 2015 decision, the Copyright Board deemed that using 1-2 pages of a work (not to exceed 2.5% of the entire work) would be insubstantial.
Reliance on fair dealing is also not required if the work has entered the public domain (i.e., to which the copyright has expired), or is open access or included under a valid licence, such as the ones held by the University of Ottawa library, allowing the use in question. Alternatively, you may also use work for which you yourself hold the copyright.
If none of the above apply, and before assuming that copyright permission is required, consider the possibility of using fair dealing—your user right under the Copyright Act—if the use is eligible.
How is fair dealing applied?
Legally, fair dealing is determined via a case-by-case analysis of several factors spanning two tests. The first test is determining the purpose of the dealing, or intended use, and whether it falls under an eligible category outlined in the Copyright Act. These include educational purposes, research, private study, criticism, review, news reporting, and satire or parody. The good news for our university community is that these purposes, particularly the educational purpose, are directly relevant to the research, teaching, and writing performed in higher education.
At this point, if the purpose of the work falls under one of these categories, the second test is that the dealing must be considered "fair." Next, five additional factors defined in the applicable jurisprudence must be considered as a whole. These are: the character, amount, alternatives, nature, and effect of the dealing.
Within the University of Ottawa context, the application of fair dealing is guided by the University’s fair dealing guidelines, which take a simplified approach to this second test. In general, reproducing and sharing short excerpts from copyright-protected works for an eligible purpose is allowed without any need for permission from the creator or copyright holder. Under the guidelines, a short excerpt can be interpreted as up to approximately 10% of a work, with additional interpretations provided for specific types of materials such as books, journal articles, and artistic works.
A special note for professors
Fair dealing enables University of Ottawa instructors to disseminate teaching materials to students without infringing on copyright. For example, instructors are permitted to reproduce and share a short excerpt from a work protected by copyright, in either print or electronic formats, to each student in their course. The works may be shared as a printed handout in class, by email, or in a course pack, as well as in a posting made on the Virtual Campus. At times, the limits outlined in the fair dealing guidelines may need to be exceeded, and in these cases, professors are invited to contact the Copyright Office for more guidance. In general, it is important to use only as much of the given work as is required to achieve the pedagogical goal.
Protect fair dealing and make your voice heard
Fair dealing in Canadian copyright law serves as a crucial mechanism for balancing the interests of creators and users. Professors, researchers, and students can all benefit from the flexibility it provides, enabling intellectual freedom in research and teaching, and allowing the dissemination of knowledge to flourish.
Unfortunately, user rights under the Copyright Act are under threat. A recent extension to the term of copyright from the life of the creator plus fifty years to life plus seventy will prevent works from entering the public domain for another twenty years. Furthermore, publisher interests are applying pressure on the federal government to try and restrict fair dealing, particularly in the context of education.
Please take a moment to make your voice heard to help protect fair dealing and user rights in Canada, and to better safeguard our community’s access to education and research. For more information, and to send a letter to the Minister of Innovation, Science and Industry, the Minister of Canadian Heritage, and your Member of Parliament, voicing your concerns, please visit the Fair Dealing Works website.
The Copyright Office and Copyright Services Librarian are also available to help you learn how to implement fair dealing here at the University. As in all matters related to copyright, particularly your user rights, knowledge is power.
