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Copyright Fair Dealing Analysis at Conestoga

Conestoga has prepared this Fair Dealing Analysis to provide direction for the Conestoga community in the application of the Copyright Act's Fair Dealing Exception. Conducting a Fair Dealing Analysis to determine when clearance is required also affords reasonable safeguards for copyright holders, in accordance with Canadian copyright law.

The analysis begins with two ‘tests’: The first considers the purpose for copying as articulated in the Act. The second focuses on determining fairness utilizing a six-factor analysis, as decided by the Supreme Court of Canada in its 2004 CCH v. Law Society of Upper Canada ruling.

Test 1: Consider the Purpose for Copying

As stated in the Copyright Act, the permitted purposes that apply to fair dealing are:

  • research
  • private study
  • education
  • parody
  • satire
  • criticism
  • review
  • news reporting

Since it is a condition of the statute, purpose must be satisfied. The additional statutory requirement for attribution accompanies some of these permitted purposes, specifically criticism, review and news reporting.

Although reproduction for education, research, and private study are particularly relevant at Conestoga, the other allowable purposes may also be important in certain circumstances.

Education was added as a permissible purpose for fair dealing in 2012 and the Court has asserted that purpose is broadly interpreted. Therefore, we now have greater latitude than was previously the case, to employ the fair dealing exception in research, teaching and learning on campus, whether face to face or online using eConestoga.

However, the fact that the copying is done for a campus-related activity is not sufficient alone. Copying for another intention, even though it takes place at the College may require clearance from the copyright holder.

For example, performing sections of a copyright-protected play in an English class may be considered fair dealing; performing the same sections before a paying public audience in a campus theatre would require clearance and payment of a royalty. Likewise, posting a digital copy of a relevant article to eConestoga may be considered fair dealing, while copying and distributing the same article to delegates at a conference held at the College likely would require clearance.

Test 2: Consider all the Other Factors to Weigh Fairness

If the intended copying satisfies a purpose listed in the Copyright Act, the next step is to test the fairness using the following six factors.

  • Purpose of the Dealing
  • Character of the Dealing
  • Amount of the Dealing
  • Alternative to the Dealing
  • Nature of the Work
  • Effect of the Dealing

To learn more about these fairness factors, review the options below.

Purpose of the Dealing

Although related to the allowable purposes included in the first test, the Purpose factor examines in more detail the reason or motive for copying the copyright-protected content. In the landmark case of CCH Canadian Ltd v Law Society of Upper Canada (2004 SCC 13), the Supreme Court noted that "some dealings, even if for an allowable purpose, may be more or less fair than others; research done for commercial purposes may not be as fair as research done for charitable purposes" (para 54).

For example, copying to achieve a specific educational purpose, such as illustrating a concept in an eConestoga lesson, providing background information to stimulate class discussion, or simplifying access to course readings would tend to be fair dealings. Copying for entertainment or to avoid purchasing the required textbook would tend to be unfair.

Character of the Dealing

The Character factor focuses on what is being done with the copies: how the reproductions are distributed, to whom, and in what way.

Copies that may be provided or communicated include:

  • a print handout
  • a posting to a learning management system, such as eConestoga, that is secure, password-protected and restricted to members of the Conestoga community
  • part of a custom course book

Copies that may be displayed include:

  • a poster
  • a manual reproduction on a board
  • an illustration in a classroom presentation such as PowerPoint

Copies that may be performed include:

  • part of a video screened in class

Each dealing requires a separate analysis and additional conditions may apply contingent on the character of the particular dealing.

In the case of electronic articles or books, best practice is to provide a link to the online copy, routing students through Conestoga’s Library authentication.

Likewise, posting copies of course readings into eConestoga, Conestoga’s secure learning management system, is the preferred method of communicating copyright-protected material to a class. eConestoga reduces the risk of infringement since it is secure, and access can be restricted to students in a specific class.

Note: Any fees Conestoga charges for copying or communicating portions of works protected by copyright can only recover Conestoga's costs including overhead. No ‘profit’ can be realized.

Amount of the Dealing

The Amount factor specifically considers the size of the portion that is reproduced in relation to the size of the original work as a whole.

Copying that consists of any of the following amounts might be considered fair dealing:

  • up to 10% of a work, or
  • one chapter from a book, or
  • one article from a periodical, or
  • one artistic work (which may include a painting, print, photograph, diagram, drawing, map, chart, or plan) from a work containing other artistic works, or
  • one entire newspaper article or page from a newspaper, or
  • one entire poem or musical score from a work containing other poems or musical scores, or
  • one entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference work.

The portion reproduced should contain no more of the work than is required to achieve the desired fair dealing goal.

The amounts laid out above serve only as a guideline – copying factors need to be considered on a case-by-case basis. Copying that exceeds these general guideline amounts may require further application of the other fair dealing factors. This more detailed analysis may result in the need to seek clearance from the copyright holder.

Copying the entire work, except in the situations indicated above, typically requires clearance from the copyright holder. For example, reproducing and uploading an article from a single issue of a journal into eConestoga would likely fall within the Amount fairness factor. Conversely, reproducing half of the chapters from a book as a handout to a class or as part of a custom course book would exceed generally acceptable amounts and necessitate receiving clearance prior to copying.

Sequentially copying or communicating multiple portions from the same copyright-protected work with the effect of reproducing the complete work or a substantial part of it, would be considered systematic or cumulative copying, which is not permitted.

For example, when reproducing different portions from the same book in a semester for a class, combine all copying instances to weigh the amount factor in your fair dealing analysis. Keep in mind however that a fair dealing analysis encompasses more than just amount.

Alternative to the Copying

The Alternative factor examines possibilities for making the specific content available in ways other than reproducing it.

Important in considering alternatives to copying the work are issues including:

  • availability of a non-copyright-protected equivalent
  • necessity to reproduce the portion of the work in order to achieve the desired goal

For example, for a particular course, the goal is to make an online article easily available to students as supplementary background reading for a class discussion or tutorial. Providing the persistent or durable link to the library-subscribed digital version is an acceptable alternative to physically reproducing the article or posting a PDF version of it into eConestoga. Linking is always an acceptable alternative. Linking to legitimate sources found on the Internet is also an acceptable alternative.

Nature of the Work

The Nature factor considers the parent work and its attributes.

Considerations can include criteria such as:

  • is the work published or unpublished?
    • if published, is it available digitally on an open access platform or from a proprietary source like an academic journal or e-book and
    • if unpublished, is it of a ‘private’ nature, not intended for distribution
  • is the work a legal version?
  • Is the work secured by a technological protection measure (TPM)?
  • is the work a consumable, like a workbook, or a business case study (Canadian Association of University Teachers, 2013)?
Published or Unpublished Works

The Court indicates that one of the goals of copyright law is to lead to the wider dissemination of the work. For example, if reproducing and acknowledging a work that is unpublished would give it broader exposure, the dealing may be considered fairer than distribution of a work not intended for widespread circulation.

Legal Version and Not Secured by a TPM

The Copyright Act specifies that copying must be done from a legally obtained version of the work. Circumventing a technological protection measure (TPM) that is in place to secure content is not fair dealing. A TPM might include digital content that is encrypted or behind authentication, which requires a key or password to access it, or a digital lock that prevents copying.

Consumable Works

Copying from a consumable or business case study, which is intended for one-time use, would be less fair.

Other Key Points

Images discovered using a filtered Google Image search that retrieves content labeled for reuse may be fairer than reproducing images copied from a photography website.

Effect of the Dealing

The Effect factor assesses the impact that copying will have on the work.

Competition with the market for the original work is integral to weighing the Effect factor, specifically considering whether reproducing and making the copy available will negatively impact the original work by competing with potential sales.

For example, using a low-resolution image rather than the original high-resolution version would tend to be fair. Reproducing illustrations or diagrams from an out-of-print textbook for use in a classroom presentation may be considered fairer than copying them from a current textbook available for sale that includes a memory stick containing digital versions of its illustrations and diagrams specifically for teaching purposes.

Degree of Fairness

Although each of the fairness factors should be considered, it is not obligatory that rationale for all factors is required to arrive at a ‘degree of fairness’ that will tolerate copying without seeking clearance from the copyright-holder in every fair dealing analysis. One factor may be more significant and relevant in one situation and less in another.

Since it is a statutory requirement, only the purpose for copying must be considered and satisfied. Of the fairness factors outlined by the Supreme Court, one does not supersede the others in importance when conducting a fair dealing analysis.

The analysis will reveal the ‘degree of fairness’ applicable to the particular situation. This in turn will decide whether fair dealing applies to the particular instance or whether looking to alternate means such as another statutory exception or securing clearance from the copyright-holder must be done prior to copying.

Providing Attribution

Attribution is always necessary when employing the work of others in research, teaching and learning - not only for copyright reasons, but also to satisfy institutional requirements regarding academic integrity and plagiarism. To learn how to cite and reference the work of others, visit APA @ Conestoga.

References

Canadian Association of University Teachers. (2013, February). CAUT guidelines for the use of copyrighted material. https://www.caut.ca/docs/default-source/copyright/revised-caut-guidelines-for-the-use-of-copyrighted-material-%28feb-2013%29.pdf

CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13. CanLII. https://www.canlii.org/en/ca/scc/doc/2004/2004scc13/2004scc13.html

Copyright Act, R.S.C., 1985, c. C-42. Justice Laws Website. https://laws-lois.justice.gc.ca/eng/acts/C-42/Index.html

This work, Copyright Fair Dealing Analysis at Conestoga, is a derivative of Copyright Fair Dealing Analysis by University of Western Ontario, used under CC BY-SA 4.0. Copyright Fair Dealing Analysis at Conestoga is licensed under CC BY-SA 4.0, by Conestoga College.