This is part two in our series to celebrate Fair Dealing Week, part three (on students and fair dealing) will appear on Friday.
Fair dealing is a powerful tool for using copyrighted works in the classroom. Historically, it has been an underused concept in the educational sector, but this changed drastically in 2012 when two things happened. First, the Supreme Court of Canada issued five decisions on intellectual property — one of which dealt directly with classroom copying, and came down strongly in favour of classroom copying. Second, the Government of Canada amended the Copyright Act to include education as one of the protected categories of fair dealing.
Now, this means that fair dealing is available in the educational context, but it is important to remember that copyright in Canada is a balance: between user’s rights on one hand, and the creator’s rights on the other. So while instructors can engage in copying for their classes, it must be done in a fair and ethical manner. The framework to make this decision was explained by the Supreme Court of Canada, when they identified six factors that decide whether an instance of copying is fair. They are:
- The Purpose of the Copying: This is a more expanded discussion of why you are using the work (is it for educational purposes? Research? etc.)
- The Character of the Dealing: Are you planning to make multiple copies, or only one? Will they be destroyed after use?
- The Amount of the Dealing: How much of the work is being copied? Are you only copying what is absolutely necessary from the work?
- Alternatives to the Dealing: Could you have used a non-copyrighted alternative instead?
- The Nature of the Work: Was the Work copied intended to be confidential?
- The Effect of the Dealing on the Work: Is the copying likely to affect the commercial value of the work?
These factors are weighed together by the courts to decide, on the whole, whether the dealing is more or less fair.
Of course, in the interests of helping you apply these criteria, Dalhousie has adopted a list of fair dealing guidelines. These guidelines take into account the above six factors, and provide guidance on what can and cannot be copied in an educational setting. You can learn more about them here.
If you have any additional questions about Dalhousie’s fair dealing guidelines, or fair dealing in general, please contact us at Copyright.Office@Dal.ca