3 THINGS TO KNOW ABOUT FAIR DEALING

As you know, subject to certain exceptions, the author is the sole master of their work.

Thus, using someone else’s work, in whole or an important part, without authorization can potentially amount to copyright infringement.

There is however a legitimate way one can borrow an important part of someone’s work without asking for permission: the fair dealing exception.

** You may have heard of the term “fair use”. Fair dealing is NOT fair use. Fair use is an American concept similar to fair dealing, sure, but it is not applicable in Canada.

1. WHAT IS FAIR DEALING?

In simple words, fair dealing is a right given to users in order to counterbalance the almighty-seeming rights authors have over their creations. It legitimizes certain uses of someone else’s IP that, without it, would constitute copyright infringement.

Determining whether fair dealing applies is a two-part test: first, by determining whether the use falls within the categories allowed by the Copyright Act, second, by factoring-in various criterias (?) proposed by case law.

2. USE : IS IT A CATEGORY COVERD BY LAW?

As mentioned above, the first part of the test serves to determine the purpose of the use.

This part is vital: the purpose must absolutely be allowed in the Copyright Act:

  • private study;
  • research;
  • education;
  • parody;
  • satire;
  • criticism;
  • review and;
  • news reporting.That is all. 

3. IS IT REALLY FAIR DEALING?

The second part of the test has to answer the following question with a YES: is the work really used in a way that is fair… to the author and their work ?

In other words, not only must the work be used for the right purposes, it must effectively be used in a fair manner. This is context-dependent and differs from case to case.

That said, courts have established criteria to determine whether or not the use in question is fair.

  1. The purpose of the use
  2. The nature of the use
  3. The extent of the use
  4. The existence (or not) of alternatives to using the work
  5. The nature of the work
  6. The effect the use has on the work

These criteria are not cumulative and must be analyzed on a case-by-case basis.

[[ EXAMPLE :

A music blog publishes, without permission, two excerpts from the latest album. It is not fair dealing, and the blog in question risks a copyright infringement complaint.

Another blog publishes the same two excerpts as part of a ‘top 5 Montreal’ list, and includes a review of each track: should the band make a complaint, the blog could invoke a defense of fair dealing.

“What’s the difference ?!”

In the second case, the works were used for criticism, which makes the use fair dealing. In the first case, the use of the work does not fall within any of the fair dealing categories set out in the Copyright Act. There is therefore no fair dealing and the use of the work could potentially be copyright infringement.

However, context is everything and courts will analyze the use of the work according to various criteria: does the distribution of excerpts have a negative impact on the work and their authors? Is the work published in its entirety? Is there a commercial interest behind the blog post? Etc. ]]

As you can see, fair dealing is a very limited exception and depends on the situation. With so many variables at play, it can be treacherous to venture alone in these murky waters!

Don’t hesitate to write to me for more details!

(** Bloggers: please note that the intent of this post is not to provide legal advice, but rather to outline the fair dealing exception principle; I would be more than happy to look into your particular situation if need be).

Photo by RhondaK Native Florida Folk Artist via Unsplash

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