What is – and isn’t – Fair Dealing?

The Copyright Act of Canada states :

Fair dealing for the purpose of:

  • research;
  • private study;
  • education;
  • parody;
  • criticism and review;
  • and news reporting

does not infringe copyright.

VERY IMPORTANT:  The Act provides these categories, but it does not define amounts of copying, or which actual uses within the categories are fair or not fair. In determining fairness, the courts apply further factors and analysis:

  • the purpose of the dealing
  • the character of the dealing
  • the amount of the dealing
  • alternatives to the dealing
  • the nature of the work
  • the effect of the dealing on the work

Because each act of copying requires analysis of these factors, a system of collective licensing emerged in Canada to simplify large-scale educational copying (mostly in K-12 schools, colleges and universities) with an agreed-upon definition of which uses are outside fair dealing.

The legal consensus has long been – and remains – that fair dealing does not apply, and a licence is necessary  for any substantial copying that amounts to:

  • up to 10% of a work;
  • an entire article, short story, play, essay or poem;
  • an entire article or page from a newspaper or periodical;
  • an entire entry from an encyclopedia or similar reference work;
  • one chapter of a book, provided the chapter is no more than 20% of that book; or,
  • up to 20% of a work or any of the above for a Course Collection and for certain library collection management purposes.

There are no set percentages or amounts of copying that can be called "fair dealing."

The responsibility of dealing fairly with an author’s creative work lies with the user, and The Writers’ Union of Canada believes users should understand and respect the historical precedents for fair dealing.

Writers respect and use the fair dealing provision within copyright law. We believe it is a necessary tool in the protection of free expression (think how criticism and review – acts of writing in themselves – would be hobbled if a critic had to ask permission to quote from a text under review). But fair dealing was never intended to take the place of fair compensation in the case of large-scale copying.

Collective licensing for the amounts listed above remains necessary, and has not been in the least affected by changes to Canadian copyright law. Large-scale users who copy without a licence, including K-12 schools and post-secondary educational institutions risk infringement action.

For more on TWUC's position on fair dealing, please see the following links:

TWUC Executive Director, John Degen, on CKUT radio discussing fair dealing (audio file)

Canadian Writers Shut Out of Fair Dealing (YouTube video)

TWUC's Statement on Fair Dealing

Writers to Students and Teachers: It's Time to Talk About Fair Dealing

TWUC Responds to Supreme Court Ruling Touchiing on Fair Dealing

Canadian Writers Removed from an Education Sector Seminar (press release)