What is fair dealing and how does it relate to copyright?
Fair dealing is an exemption in the Copyright Act which allows you to use other people’s copyright material for the purpose of research, private study, education, parody, satire, criticism, review or news reporting, provided that what you do with the work is ‘fair’. Whether something is ‘fair’ will depend on the circumstances. Courts will normally consider factors such as:
- the purpose of the dealing (Is copy being used for one of the purposes set out in the fair dealing exemption?)
- 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 Was it previously unpublished?)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?)
It is not necessary that your use meet every one of these factors in order to be fair and no one factor is determinative by itself. In assessing whether your use is fair, a court would look at the factors as a whole to determine if, on balance, your use is fair.
If, having taken into account these considerations, the use can be characterized as ‘fair’ and it was for the purpose of research, private study, criticism or review, then it will fall within the fair dealing exemption and will not require permission from the copyright owner. In addition, if your purpose is criticism or review, you must also mention the source and author of the work for it to be fair dealing.
The Queen's Fair Dealing Policy translates some of the high level principles of fair dealing into practical rules applicable to a university setting.
Under the Fair Dealing Policy a copy of a short excerpt of a copyright-protected work may be made by or on behalf of a faculty member for the purpose of teaching students. A faculty member or his or her proxy may:
- provide a copy of the short excerpt to students enrolled in a course of study as a handout;
- email a copy of the short excerpt to students enrolled in a course of study;
- post a copy of the short excerpt on an LMS stored on a secure server or other device (e.g. password protected) that is only accessible by students enrolled in a course, unit or program of instruction;
- include a copy of the short excerpt in a lecture or classroom presentation such as a PowerPoint presentation presented to students enrolled in a course of study; and
- display a copy of the short excerpt in a classroom to students enrolled in a course of study.
In each case, a copy of the short excerpt may also be provided or made available as required to another faculty member and to university staff.
As a safeguard to protect the interests of holders of copyright, the work from which the copy of the short excerpt is made must be in the lawful possession of the university or a faculty member. This would include a work in the collection of the university library or a faculty member, a work borrowed by the university library or faculty member through an inter-library loan, or a short excerpt that is copied and communicated to the university or a faculty member under fair dealing.
Under the Fair Dealing Policy a copy of a short excerpt of a copyright-protected work may be made for use by a faculty member in conducting research on a specific topic of enquiry or for inclusion in a personal collection of research resources. The faculty member may share a copy of the short excerpt with faculty and students both within the university and within another university with whom the faculty member is engaged in collaborative research. In sharing a copy of the short excerpt, the faculty member may email the copy to the students and other faculty member, or post the copy to a website on a secure server or other device (e.g. password protected), provided that the website is secured and is only accessible by those faculty members and students with whom the faculty member is conducting collaborative research.
As a safeguard to protect the interests of holders of copyright, the copying or communicating of multiple short excerpts from the same copyright-protected work for the purpose of teaching or research with the intention of copying or communicating substantially the entire work is prohibited.