Two Tests for Determining Fair Dealing


In the Supreme Court of Canada CCH case (see CCH Canadian Ltd. V. Law Society of Upper Canada), librarians making copies for lawyers engaged in the practice of law was fair; and that a broad and liberal interpretation of fair dealing be used. The Court identified two tests for determining fair dealing.
Test 1)
The purpose must be on the list of allowable purposes (research, private study, criticism, review, news reporting), and now includes education, satire and parody.
Test 2)
The dealing must be fair. The Court identified six factors for consideration.

a)  The purpose of the dealing  This must be for one of the categories of fair dealing outlined in the Act. These are research, private study, news reporting, criticism, review, education, parody and satire.

b) The character of the dealing  This may include how many copies were made, and how or if the work was distributed (to a large or small group, for example).

c) The amount of the dealing  This includes qualitative as well as quantitative measures. For example, it may be necessary to deal with a whole work, such as reproducing an entire photograph, in order to critique it; however, it is unlikely that it would be necessary to reprint most of a book for the same purpose. If the amount taken from a work is small no analysis is required, since the Act only protects a 'substantial' use of the work.  

d) The nature of the work  This examines such factors as the publication status of the work.

e) Alternatives to the dealing  If there is an equivalent non-protected work that could have been used instead of the copyrighted work, the dealing can be said to be less fair. The question when considering alternatives is whether the dealing is reasonably necessary to achieve the purpose.

f) The effect of the dealing on the work  If the reproduced work is likely to compete with the sales of the original work, the dealing will tend to be less fair.


See CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 (CanLII), [2004] 1 SCR 339.