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Fair Dealing for Faculty, Students and Staff

Copyright


University of Winnipeg passes new Copyright Policy, Fall 2016.

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 or parody. Educational use of a copyrightprotected
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 educational
institutions.

Appendix A of the University's Copyright Policy applies fair dealing in non-profit universities and provides reasonable
safeguards for the owners of copyright-protected works in accordance with the Copyright Act
and the Supreme Court decisions.

APPENDIX “A”


FAIR DEALING GUIDELINES

PART 1

INTRODUCTION TO FAIR DEALING

The Fair Dealing exception in the Copyright Act permits the Use of a substantial part of a Copyright-protected Material without permission from the Copyright holder or the payment of Copyright royalties. To qualify as Fair Dealing, the proposed Use must pass two tests.

First, the “dealing” must be for a purpose stated in the Copyright Act: research, private study, criticism, review, news reporting, education, satire or parody. Educational Use of Copyright-protected Materials passes the first test.

The second test is that the dealing must be “fair.” In landmark decisions in 2004 (CCH Canadian Ltd v. Law Society of Upper Canada) and 2012 (Alberta (Minister of Education) v. Canadian Copyright Licensing Agency (Access Copyright)), the Supreme Court of Canada provided guidance as to what this test means in educational institutions.

“Fairness” is determined by weighing certain considerations in regard to a proposed Use of a Copyright-protected Material. The Supreme Court of Canada has identified six factors that may assist in determining fairness:

  • The purpose of the dealing,
  • The character of the dealing,
  • The amount of the dealing,
  • Alternatives to the dealing,
  • The nature of the work, and
  • The effect of the dealing on the work.

The six factors are not exhaustive; other factors may be relevant to a proposed Use of a Copyright-protected Material. In addition, not all factors must be satisfied for a dealing to be considered “fair,” and some factors may be weighed more heavily than others.

  1. The “purpose” of the dealing refers to the ultimate goal of the end user.
  2. The “character” of the dealing refers to how the Copyright-protected Material is Used, distributed, and retained. For example, if multiple copies of a Copyright-protected Material are being widely distributed, this may tend to be unfair. In contrast, a single copy of a Copyright-protected Material being Used for a specific legitimate purpose is more likely to be considered fair. Limited Use, distribution, and retention of a Copyright-protected Material may generally favour a finding of fairness.
  3. The “amount” of the dealing refers to the proportion of the Copyright-protected Material that is being Used. The Requirements below outline example amounts that can generally be considered fair for enumerated Fair Dealing purposes. But in all cases, no more of the Copyright-protected Material should be Used than is necessary.
  4. “Alternatives” to the dealing refers to the availability of alternatives to Using the Copyright-protected Material. For example, is a similar Material not protected by Copyright available for Use? And is it reasonably necessary to Use the Copyright-protected Material to achieve the ultimate purpose? The availability of a license, however, is not a valid consideration in determining alternatives to the dealing.
  5. The “nature of the work” refers to a consideration of whether the Copyright-protected Material is unpublished or published, and whether it is intended for public consumption or private Use only.
  6. The “effect of the dealing on the work” refers to the effect the Use may have on the original Copyright-protected Material. If the reproduced Material is likely to compete with the market of the original Material, this may suggest that the dealing is not fair.

Having applied these considerations and with the reasonable belief that a proposed Use is fair, Employees, students and other persons may Use a Short Excerpt of a Copyright-protected Material under Fair Dealing according to the Requirements below and the University’s Copyright Policy.

PART 2

FAIR DEALING REQUIREMENTS

The University reasonably believes that these Requirements provide reasonable safeguards for the owners of Copyright-protected Material in accordance with the Copyright Act and the Supreme Court of Canada decisions.

  1. Employees, students, and other persons at the University may Copy and Communicate, in paper or electronic form, a Short Excerpt from a Copyright-protected Material for the purposes of research, private study, criticism, review, news reporting, education, satire, or parody.
  2. Bibliographic information (cite the source) must be provided when Copying or Communicating Short Excerpts from Copyright-protected Materials under these Fair Dealing Requirements for all of the purposes cited in item 1.
  3. A copy of a Short Excerpt from a Copyright-protected Material may be Communicated to each student enrolled in a class or course pursuant to the University’s Copyright Policy.
  4. A Short Excerpt means:
    1. up to 10% of a Copyright-protected Material (including a literary Work, musical score, Sound Recording, and an audiovisual work)
    2. one chapter from a book
    3. a single article from a periodical
    4. an entire artistic Work (including a painting, print, photograph, diagram, drawing, map, chart, and plan) from a Copyright-protected Work containing other artistic Works
    5. an entire newspaper article or page
    6. an entire single poem or musical score from a Copyright-protected Work containing other poems or musical scores
    7. an entire entry from an encyclopedia, annotated bibliography, dictionary or similar reference Work

    provided that in each case, no more of the Material is copied than is required in order to achieve the allowable purpose.

  5. Although the portion of a Copyright-protected Material that may be Copied to produce a Short Excerpt is intended as an approximation that will generally be fair in most circumstances, all proposed Copying must be considered in light of the larger, six-factor framework, and, where there is any doubt or uncertainty, the Copyright Office should be consulted for advice.
  6. Copying or Communicating multiple Short Excerpts from the same Copyright-protected Material, with the intention of Copying or Communicating substantially the entire Material, is prohibited.
  7. Any fee charged by the University for Communicating or Copying a Short Excerpt from a Copyright-protected Material must be intended to cover only the costs of the University, including overhead costs.

Any proposed Copying or Communicating under Fair Dealing that exceeds the limits in these Fair Dealing Requirements shall be referred to the Copyright Office before proceeding.