Fair dealing is a user’s right in copyright law permitting use of, or “dealing” with, a copyright protected work without permission or payment of copyright royalties. The fair dealing exception in the Copyright Act allows you to use other people’s copyright protected material for the purpose of research, private study, education, satire, parody, criticism, review or news reporting, provided that what you do with the work is ‘fair’. If your purpose is criticism, review or news reporting, you must also mention the source and author of the work for it to be fair dealing.
Whether something is ‘fair’ will depend on the circumstances. Courts will normally consider factors such as:
- The purpose of the dealing (Is it commercial or research / educational?)
- The character of the dealing (What was done with the work? Was it an isolated use or an ongoing, repetitive use? How widely was it distributed?)
- The amount of the dealing (How much was copied?)
- Alternatives to the dealing (Was the work necessary for the end result? Could a different work have been used instead?)
- The nature of the work (Is there a public interest in its dissemination? Was it previously unpublished?)
- The effect of the dealing on the original work (Does the use compete with the market of the original work?)
It is not necessary that your use satisfy every one of these factors in order to be fair, and no one factor is determinative by itself. In assessing whether your use is fair, a court would look at the factors as a whole to determine if, on balance, your use is fair.
If, having taken into account these considerations, the use can be characterized as ‘fair’ and it was for the purpose of research, private study, education, satire, parody, criticism, review or news reporting, then it will fall within the fair dealing exception and will not require permission from the copyright owner. In addition, if your purpose is criticism, review or news reporting you must also mention the source and author of the work for it to be fair dealing. For further clarity and additional information about limits on the amount and nature of copying permitted under fair dealing in certain contexts, please see the Application of Fair Dealing under Policy R30.04. These limits are also outlined in the left column of the Copyright Infographic.
Please note as well; it is important to distinguish ‘fair dealing’ from ‘fair use’. The fair use exception in U.S. copyright law is NOT the equivalent of fair dealing in Canadian law. The wording of the two exceptions is different. It is important to make sure that you consider the Canadian law and are not relying on U.S. information, which has no jurisdiction in Canada.