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Copyright Law Basics (3) – User Rights and Fair Dealing

November 7, 2014

By Alan Kilpatrickcopyright

Copyright is a hot topic in Canada. Discussions on copyright often lead to contention and controversy. A basic understanding of copyright can help ensure fair and equitable access to law, justice, and information. Over the past several weeks, we have explored copyright balance and copyright owner rights. This week, we are going to discuss an important user right.

As with copyright owners, copyright users are also granted a variety of rights under the Copyright Act. The most important user right to know about is called fair dealing.

Fair dealing is the right, when fair and reasonable, to copy a substantial portion of a copyrighted work without permission from, or payment to, the copyright owner. Fair dealing is briefly expressed in section 29, 29.1, and 29.2 of the Act.

Fair dealing for the purpose of research, private study, education, parody, satire, criticism, review, and news reporting does not infringe copyright.

At paragraph 48 of CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, the Supreme Court of Canada (SCC) described fair dealing as:

…an integral part of the Copyright Act…any act falling within the fair dealing exception will not be an infringement of copyright.

Fair dealing is an exception to copyright infringement. It is also crucial to maintaining proper copyright balance between owner rights and user rights. At paragraph 48 the SCC goes on to say:

The fair dealing exception…is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.

To maintain balance, we can think of user rights as a limit on owner rights. The Copyright Act does not define exactly what fair dealing is or the amount of copying considered fair. To help copyright users assess whether their copying falls within the fair dealing exception, the SCC established a fair dealing test involving six criteria at paragraph 60 of the same judgment:

…the purpose of the dealing, the character of the dealing, the amount of the dealing, the nature of the work, available alternatives to the dealing and the effect of the dealing on the work are all factors that could help determine whether or not a dealing is fair. These factors may be more or less relevant to assessing the fairness of a dealing…In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair.

Next time, we will explore these six criteria: purpose, character, amount, alternatives, nature, and effect. The Canadian Association of University Teachers has published an excellent description of the fair dealing test here.

(Reposted from Legal Sourcery)

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Sources

CanLII. (2002). Théberge v. Galerie d’Art du Petit Champlain inc. Retrieved from http://www.canlii.org/en/ca/scc/doc/2002/2002scc34/2002scc34.pdf

CanLII. (2004). Law Society of Upper Canada v. CCH Canadian Limited. Retrieved from http://www.canlii.org/en/ca/scc/doc/2004/2004scc13/2004scc13.pdf

Geist, M. (2010). From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda. Toronto: Irwin Law.

Justice Canada. (2014). Copyright Act (R.S.C., 1985, c. C-42). Retrieved from http://laws-lois.justice.gc.ca/eng/acts/C-42/index.html

Murray, L.J. & Trosow, S.E. (2013). Canadian Copyright: A Citizen’s Guide. 2nd ed. Toronto: Between the Lines.

Trosow, S. (2010). Bill C32 and the Access Copyright Tariff: Double Trouble for Higher Education. Retrieved from http://ir.lib.uwo.ca/cgi/viewcontent.cgi?article=1003&context=fimspres

Trosow, S. (2009). The Copyright Debate: Finding the Right Balance for Teaching, Research, and Cultural Expression. Retrieved from http://ir.lib.uwo.ca/wlevents/1/

Kilpatrick, A. (2012). Access Copyright: What does it mean for Western? A Librarian’s Guide. Retrieved from http://ir.lib.uwo.ca/fimspres/14/

Kilpatrick, A. & Harrington, M. (2013). Copyright and Canadian Academic Libraries. Retrieved from http://works.bepress.com/marni_harrington/12/

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