1. What is Fair Dealing?
- In a copyright infringement action, sections 29, 29,1 and 29.2 of the Act provides for the use of fair dealing as a defence.
- There are two basic prerequisites to determine whether someone can use “fair dealing” as a defence to a claim of copyright infringement. First, the dealing must be fair. Second, the dealing must be for on the purposes specified in the Act (private study, research, criticism, review, or news reporting).
- Fair dealing for the purpose of criticism, review or news reporting must contain a credit to the source and the author
- However, fair dealing is not an easy defence to prove. It depends on the facts and is analyzed on a case by case basis. It depends on various factors such as the nature of the work copied, the amount and significance of the work copied, the use made of the copy, and the degree to which the copy competes in the market for the original, the availability of a licence from a collective society.
- As we know, fair dealing for the purpose of private study and research does not include multiple copying of works by educational institutions to distribute to students in classrooms or cover the selling of course packs.
- The Canadian concept of fair dealing is different than the US concept of fair use. Fair use is broader. However, even with the US concept being broader, the court in Texaco still found that the copying was not fair dealing.
- In the Texaco case (American Geophysical Union et. al. v. Texaco) which went to the Court of Appeal and settled before U.S. Supreme Court by Texaco agreeing to pay a seven figure amount to the CCC for photocopying licensing. The Court held that it was not fair use under the U.S. Copyright Act for a profit-seeking company to make unauthorized photocopies of copyrighted articles published in scientific and technical journals for use by the company’s scientists employed in scientific research. It is very likely that should Canadian courts be faced with a fair dealing question in the context of photocopying for research for commercial purposes, it would be concluded in much the same manner as the Texaco decision.
- In order for fair dealing to be used as a defence, the copying must be for one of the specified purposes (research, private study, criticism, review or news reporting) and the defence only generally only applies to the individual doing the research or private study (i.e. the purpose for which the copying is undertaken is the purpose of the person making the copies and not the purpose of the person for whom the copies are made). *subject to the new exception