Copyright Guide

The fair dealing provision in the Copyright Act permits use of a copyright-protected work without permission from the copyright owner or the payment of copyright royalties. The purpose of fair dealing is to balance the exclusive right of copyright owners with the rights of users to use these works in the public interest. 

Fair dealing does not mean that faculty, staff or students can make unlimited use of any copyright‐protected work without permission or payment. To qualify for fair dealing, two tests must be passed.

First, the “dealing” must be for a purpose stated in the Copyright Act:

• research,
• private study,
• criticism or review,
• news reporting,
• education,
• satire, or
• parody.

Second, the dealing must be “fair.” 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 amount of the dealing (How much was copied?)
• 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?)
• alternatives to the dealing (Was the work necessary for the end result? Could the purpose have been achieved without using the work?)
• 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 Was it previously unpublished?)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?)

The relevance of the factors depends entirely on the context. Sometimes, certain factors will be much more significant than the others. It is also not necessarily the case that all six factors need to be satisfied. Consult the Supreme Court CCH Ruling (2004) and the Copyright Board of Canada Decision (2015) for additional information.

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1. Teachers, instructors, professors, and staff members in non-profit educational institutions may communicate and reproduce, in paper or electronic form, short excerpts from a copyright-protected work for the purposes of research, private study, criticism, review, news reporting, education, satire, and parody.

2. Copying or communicating short excerpts from a copyright-protected work under these Fair Dealing Guidelines for the purpose of news reporting, criticism, or review should mention the source and, if given in the source, the name of the author or creator of the work.

3. A single copy of a short excerpt from a copyright-protected work may be provided or communicated to each student enrolled in a class or course

• as a class handout;
• as a posting to a learning or course-management system that is password protected or otherwise restricted to students of a school or postsecondary educational institution;
• as part of a course pack.

4. A short excerpt means:

• up to 10 per cent of a copyright-protected work (including a literary work, musical score, sound recording, and an audiovisual work);
• one chapter from a book;
• a single article from a periodical;
• an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart, and plan) from a copyright-protected work containing other artistic works;
• an entire newspaper article or page;
• an entire single poem or musical score from a copyright-protected work containing other poems or musical scores;
• an entire entry from an encyclopedia, annotated bibliography, dictionary, or similar reference work.

5. Copying or communicating multiple short excerpts from the same copyright-protected work with the intention of copying or communicating substantially the entire work is prohibited.

6. Copying or communicating that exceeds the limits in these Fair Dealing Guidelines may be referred to a supervisor or other person designated by the educational institution for evaluation. An evaluation of whether the proposed copying or communication is permitted under fair dealing will be made based on all relevant circumstances.

7. Any fee charged by the educational institution for communicating or copying a short excerpt from a copyright-protected work must be intended to cover only the costs of the institution, including overhead costs.

More information about fair dealing, please refer to Fair Dealing Decision Tool

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It is always a good practice to consistently use other materials under the assumption that course materials used in the class are protected by copyright. The following steps can be used when preparing your course materials:

a. Identifying the copyright holder. Determining the entity or individual who holds the copyright to the materials or content.

b. Determining if permission is needed. If course materials use a copyright-protected work that is not covered by an existing license (e.g., creative commons) or Fair Dealing in the Copyright Act, the instructor should seek permission from the copyright owner.

c. Managing improper authorized materials. The possible options for ensuring compliance with copyright law might involve obtaining proper permissions from the copyright holder, modifying the materials to remove copyrighted content, or seeking alternatives that are freely available or licensed for educational use.

Recommendations:

• It is recommended to share the direct links to materials (e.g., videos, articles, and documents) with students, rather than uploading the materials in Moodle Shell. When seeking permission to use a published work, the best place to start is on the copyright holders’ or publisher’s website. Many of them have an online form that you can fill out to request permission. 
• It is recommended to get written permission agreements. Depending on an oral agreement or understanding should be avoided. There’s a possibility that both you and the rights owner misunderstood each other or remembered the terms of your agreement differently. Permission may come in the form of a letter or e-mail from the publisher and/or copyright owner or it may be in the form of a license agreement. It is very important to keep a copy, for your records, of the written permission or license that you receive in case you are required to provide proof of the permission in the future.

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