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What do trade agreements have to do with copyright? The Canada-US-Mexico Agreement and fair dealing

Published February 25, 2019 by Jennifer Zerkee

Happy Fair Dealing Week!

February 25 to March 1 is Fair Dealing Week 2019. Fair Dealing Week (and Fair Use Week in the US) "is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines" (Association of Research Libraries, fairuseweek.org).

Fair dealing is a user's right in Canada's Copyright Act that is particularly useful for academics as it can make it easier to reuse works or portions of works in teaching, learning and research. The Canada-US-Mexico Agreement will increase the term of copyright protection in Canada, making it more important for scholars and others to be aware of legal options for reusing copyright-protected works.

What is fair dealing?

Fair dealing permits the use of copyright-protected works without permission or payment in certain circumstances.

Anyone can take advantage of fair dealing, provided the use of the work is for one of the purposes listed in the Act: research, private study, education, satire, parody, criticism, review and news reporting. You can see that most of these are relevant in academia!

In addition to fulfilling one of those specific purposes the use must also be "fair," which is determined through an analysis of factors such as:

  • The purpose of the dealing (Is it for a commercial purpose or an educational purpose?)
  • The character of the dealing (What is being done with the work? Is it an isolated/limited use, or an ongoing, repetitive use? How widely will it be distributed?)
  • The amount of the dealing (How much of the work was copied?)
  • Alternatives to the dealing (Was the work necessary to achieve the purpose? Could a different work have been used instead?)
  • The nature of the work (Is its use or dissemination in the public interest?)
  • The effect of the dealing on the original work (Does the use compete with the market for the original work?)

These factors are considered as a whole, and if on balance they tend towards fairness the use is likely fair. These factors must be considered on a case-by-case basis for every potential instance of fair dealing.

Fair dealing is not to be confused with fair use, an American copyright provision; the two are similar but not equivalent. Your use of copyright-protected content in Canada is governed by the Canadian Copyright Act only.

What is CUSMA and what does it have to do with copyright?

The Canada-United States-Mexico Agreement (CUSMA, also known as the United States-Mexico-Canada Agreement or USMCA, or as "NAFTA 2.0") is a new trade agreement between these three countries. This agreement was signed on November 30, 2018, and the three governments are now in the process of ratifying the agreement before implementing its terms.

CUSMA includes a number of copyright and other intellectual property provisions. The most significant of these is an increase in the length of copyright term: currently, most works are protected by copyright in Canada for the life of the creator plus 50 years, after which copyright expires and that creator's work enters the public domain. Public domain works can be used by anyone in any way without permission or payment. In 2019, in most cases works created by anyone who died in 1968 or earlier are now in the public domain in Canada.

When CUSMA is implemented, the copyright term will change to life plus 70 years. If this were in effect in 2019, only works created by people who died in 1948 or earlier would be in the public domain and free to use in any way without permission or payment. This means that work created 100 years ago or more could still be protected by copyright, even though it may be long out of print or no longer in use.

It's not clear yet exactly how the government will introduce this change but it is likely that all works currently protected by copyright in Canada will have that protection extended for an additional 20 years, and this will likely mean that the public domain will "freeze" with no copyrights expiring for 20 years after CUSMA goes into effect.

What does this mean for me?

Because works in the public domain have no restrictions on how or by whom they can be used, they are valuable for creators of all kinds - scholarly and creative, professional and amateur. Without new works entering the public domain and becoming free to reuse, it will be helpful to understand fair dealing and other user rights you can rely on to use copyright-protected works in certain ways, without needing to contact rightsholders for permission or pay a licensing fee.

Visit copyright.sfu.ca for FAQs, resources and links from the SFU Copyright Office, or contact us at copy@sfu.ca with any questions.

Visit fair-dealing.ca for testimonials from students, educators, librarians and others about the ways in which fair dealing benefits them, and for Fair Dealing Week event listings from across Canada.

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