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. 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, review, news reporting, education, satire or parody. Educational use of a copyright protected work passes the first test.
The second test is that the dealing must be "fair." In landmark decisions in 2004 and in 2012, the Supreme Court of Canada provided guidance as to what this test means in educational institutions.
Teachers, instructors, professors and staff members in non-profit universities 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 or parody.
Copying or communicating short excerpts from a copyright-protected work for the purpose of news reporting, criticism or review must mention the source and the name of the author or creator of the work.
(Source: Universities Canada Fair Dealing Policy for Universities)
A short excerpt means an insubstantial amount of a copyright-protected work (including a literary work, musical score, sound recording, or an audiovisual work). This can be difficult to define however in each case, the amount of the work copied should be no more than is required in order to achieve the allowable purpose.
Fair Dealing Analysis - Two Part Test
A fair dealing analysis can help you identify if your proposed use of copyrighted material may be fair. It consists of two parts.
1. Identify if your use falls within one of the Copyright Act's recognized purposes of research, private study, education, parody, satire, criticism, review, and news reporting. This is a statutory requirement to use the exception.
2. Apply the six non-exhaustive factors identified in Supreme Court decisions to help you determine the degree to which your use of the material may be considered fair based on past case law and current practices:
Note that your use does not have to meet every one of the factors in order to be fair, and no factor is considered to be necessarily more important than any other. It all depends on the circumstances. Other factors may also be worth considering based on your situation.
When combined with a Fair Dealing Analysis, institutional guidelines and policies can also be useful tools to help evaluate your use.
If you are unsure if your copying meets the requirements for fair dealing, contact Copyright@smu.ca. An evaluation of whether the proposed copying or communication is permitted under fair dealing will be made based on all relevant circumstances.
Some copyright holders use digital locks to restrict access to copyright-protected works and/or to limit the use that can be made of such works. The Copyright Act now prohibits the circumvention of digital locks to obtain access to copyright-protected works. The Fair Dealing Policy does not permit the circumvention of digital locks to obtain access to copyright-protected works. In order to circumvent a digital lock it is necessary to obtain the permission of the copyright holder.
Source: Application of the Fair Dealing Policy for Universities (AUCC)
Please note: This guide does not provide legal advice. It is intented to give guidance about acceptable use of copyright protected materials.