Fair Dealing Procedure on the Use of Copyright-Protected Works

AC-PRO-034
Fair Dealing Procedure on the Use of Copyright-Protected Works
Creation DateJune 15, 2016
Approval DateJune 15, 2016
Effective DateJune 15, 2016

Purpose

The purpose is to establish a clear procedure to guide the use of copyright-protected works under the terms of the Fair Dealing provision in the Copyright Act.

Background:

The fair dealing provisions in sections 29, 29.1, and 29.2 of the Copyright Act permit dealing with a copyright-protected work, without permission from or payment to the copyright owner, for specified purposes. These purposes are research, private study, education, parody, satire, criticism, review or news reporting. According to the Supreme Court of Canada the fair dealing exception is “always available” to users, provided that its legal requirements are met. When these legal requirements are met there is no need to look further at the more specific exceptions that follow in the legislation. Fair dealing, therefore, has considerable significance as people contemplating copying or other dealings with copyright-protected works consider what options are available.

“Fair dealing” is not defined in the Act. The concept has evolved significantly over the last decade through case law, including at the Supreme Court level through cases such as CCH Canadian v. Law Society of Upper Canada in 2004, and Alberta (Minister of Education) v. Canadian Copyright Licensing Agency (Access Copyright), and Society of Composers,  Authors and Music Publishers of Canada v. Bell Canada, both in 2012. These decisions set out a multi-factor analysis for assessing whether a particular copying activity or other dealing falls within the ambit of fair dealing.

This procedure document sets out a short-form guide to assist faculty and staff in decision-making about copying.

Procedure:

If there are any questions regarding this procedure or if additional direction is required, please refer to the Learning Resource Centre.

Step 1: Is the material you seek to copy protected by copyright and owned by a third party?

If no ⇒ you may copy and use the material without seeking permission

If yes ⇒ proceed to Step Two

Step 2: Does Michener already have permission to copy the material under an existing licence with Access Copyright? See:  https://portal.accesscopyright.ca/cportal/licences/RDTWork.aspx

If yes ⇒ you may copy and use the material in accordance with the Access Copyright licence.

If no ⇒ proceed to Step Three

Step 3: is the copying you propose to do “substantial”?

Please note that, although not a copyright concept, copying of parts of a work, even if not substantial, will typically require appropriate citation of the source.

If no ⇒ you may copy and use the material without seeking permission

If yes ⇒ proceed to Step Four

Step 4: is the copying permitted by “fair dealing”?

To qualify for fair dealing, two broad tests must be passed:

  • First, the “dealing” must be for an allowable purpose. The activity must be for one or more of the specific allowable purposes recognized by the Copyright Act: research, private study, education, parody, satire, criticism, review, or news reporting. Use of a copyright-protected work for teaching or research will typically pass the first test.
  • Secondly, the “dealing” must be “fair.”

NOTE:  For guidance in determining whether or not the copying qualifies for “fair dealing”, please contact the Learning Resource Centre.   The guidelines for what constitutes “fair dealing” outlined in the following section will be considered.

 

Guidelines

What constitutes “fair dealing”:

  1. Faculty and other members of the teaching staff, as well as other Michener staff supporting the educational activity may communicate and reproduce, or otherwise deal with, in paper or electronic form, short excerpts (as defined below) from a copyright-protected work (including literary works, musical scores, sound recordings and audio-visual works) for the purposes of research, private study, education, parody, satire, criticism, review, or news reporting. In some limited circumstances, such as with a photograph or drawing, an entire work may be copied.
  2. Copying or communicating short excerpts from a copyright-protected work for the purpose of news reporting, criticism or review must mention the source and, if given in the source, the name of the author or creator of the work.
  3. Subject always to the consideration and application of the fair dealing factors referred to above, a copy of a “short excerpt” from a copyright-protected work may be provided or communicated to each student enrolled in a class or course:
    1. as a class handout
    2. as a posting to a learning or course management system that is password protected or otherwise restricted to students of Michener
    3. as part of a course pack
  4. A “short excerpt” can mean:
    1. up to 10% of a copyright-protected work (including a literary work, musical score, sound recording, and an audiovisual work) – NOTE:  If the material qualifies for copying under the terms of the Access Copyright licence described in Step 2 above, the excerpt copied can be up to 20% of the work.
    2. one chapter from a book
    3. a single article from a periodical
    4. an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart, and plan) from a copyright-protected work containing other artistic works
    5. an entire newspaper article or page
    6. an entire single poem or musical score from a copyright-protected work containing other poems or musical scores
    7. an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work, provided that in each case you copy no more of the work than you need to in order to achieve the allowable purpose.
  5. Copying or communicating multiple different short excerpts from the same copyright-protected work, with the intention of copying or communicating substantially the entire work, will generally not be considered fair dealing
  6. Copying or communicating that exceeds the limits in these Fair Dealing Guidelines will require further analysis. Please contact the LRC.

Associated Documentation

Michener Copyright Policy

Fair Dealing Policy on the Use of Copyright-Protected Works

Copyright Act of Canada

Revision History

Date Reviewer Change(s) Made Policy Location(s)
June 15, 2016 Juanita Richardson procedure creation