Fair Dealing Guidelines

What is Fair Dealing?

Fair Dealing is a clause in the Copyright Act. It covers many User’s Rights’. This means that some uses of copyrighted works are permitted without asking for permission from the copyright owner. The payment of royalty fees is not required.

Fair Dealing is defined as:

“Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.”
            Copyright Act (2012) S.29

Several requirements must also be met:

• The works used must have a citation.
• It must be done without a motive of gain (cost recovery only).

Fair Dealing Test

To check the proposed use of a work to see if it would fall under the Fair Dealing, a fair dealing test must be completed.

The Supreme Court of Canada (2004, 2012) established a two-part Fair Dealing test. The test determines if a proposed use of a work would be considered Fair Dealing. Both parts must be completed.

First the “dealing” must be for a purpose stated in the Copyright Act. They are: research, private study, criticism, review, news reporting, education, satire, and parody.

The second part is that the dealing must be “fair”. This involves applying six factors established by the Supreme Court in the 2004 CCH case.

• Factor 1 – Purpose (is it commercial, educational, research)
• Factor 2 – Character (How are we using the work)
• Factor 3 – Amount (how much of the work is copied.)
• Factor 4 – Alternative (Was the work necessary, is there an alternative)
• Factor 5 – Nature (including whether it is published or unpublished)
• Factor 6 – Effect (does it compete with the original work.

Fair Dealing Guidelines

The College has adopted the Fair Dealing Guidelines, written by legal counsel, for Colleges and Institutes Canada. These guidelines follow the two part test established by the Supreme Court. You can view our guidelines below or download them here: BVC Fair Dealing Guidelines.

Fair Dealing Guidelines

Introduction

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, and 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 schools and post-secondary educational institutions. These guidelines apply fair dealing in Bow Valley College and provide reasonable safeguards for the owners of copyright-protected works in accordance with the Copyright Act and the Supreme Court decisions.

Guidelines

1. Teachers, instructors, professors, and staff members in non-profit educational institutions 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, and parody.
2. Copying or communicating short excerpts from a copyright-protected work under these Fair Dealing Guidelines for the purpose of news reporting, criticism, or review should mention the source and, if given in the source, the name of the author or creator of the work.
3. A single copy of a short excerpt from a copyright-protected work may be provided or communicated to each student enrolled in a class or course:
   • as a class handout
   • as a posting to a learning- or course-management system that is password protected or otherwise restricted to students of a school or post-secondary educational institution
   • as part of a course pack.
4. A short excerpt or “Safe Harbour” means:
   • up to 10% of a copyright-protected work (including a literary work, musical score, sound recording, and an audiovisual work);
   • one chapter from a book;
   • a single article from a periodical;
   • an entire artistic work (including a painting, print, photograph, diagram, drawing, map, chart, and plan) from a copyright-protected work containing other artistic works;
   • an entire newspaper article or page;
   • an entire single poem or musical score from a copyright-protected work containing other poems or musical scores;
   • an entire entry from an encyclopedia, annotated bibliography, dictionary, or similar reference work.
5. Copying or communicating multiple short excerpts from the same copyright-protected work with the intention of copying or communicating substantially the entire work is prohibited.
6. Copying or communicating that exceeds the limits in these Fair Dealing Guidelines may be referred to the Copyright Evaluator or to the Bow Valley College Copyright Office. An evaluation of whether the proposed copying or communication is permitted under fair dealing will be made based on all relevant circumstances.
7. Any fee charged by the educational institution for communicating or copying a short excerpt from a copyright-protected work must be intended to cover only the costs of the institution, including overhead costs. 

Adapted from CICan Fair Dealing Policy, 2012. Updated 2015/10/09

Copyright Evaluator

Bow Valley College created an online tool to apply the Fair Dealing Guidelines. The Copyright Evaluator goes through the Fair Dealing Test (both parts and the six factors) easily.

You can find the Copyright Evaluator at: www.copyright.bowvalleycollege.ca

View the Getting Started tab for a video and written instructions to help you use the evaluator.

You will receive an immediate response: either fair dealing or requiring review. If the work needs review or copyright permission, can be submitted to the Copyright Office by using the evaluator. The Evaluator is searchable. It maintains a central database of copyright records.

It includes a section for students so they can do a fair dealing test on works that they would like to use. The student version does not keep any student information or records.

Educational User Rights

The Copyright Act includes educational exemptions for educational use of works. They include:

• Reproduction for tests or exams
• Reproduction for display in class
• Playing a live broadcast of TV or radio in class
• Playing a sound recording in class
• Showing videos and films in class
• Reproducing and performing news and news commentary
• Using publicly available material on the Internet
• Putting lessons containing copyrighted material online
• Creating alternate format copies for students with perceptual disabilities
• Creating user-generated content

For more information about these exemptions please contact the Copyright Office.