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Copyright: Fair Dealing: A Six Factor Analysis

Determining Fair Dealing

Because fair dealing is a purposefully flexible, inexact device, there are no specific legal prescriptions about how much someone can copy and when, though some significant court decisions have provided some useful considerations and parameters. The most important is the Six Factor Analysis articulated in the landmark copyright case CCH Canadian Ltd. v. Law Society of Upper Canada (2004). To determine whether or not copying is Fair Dealing, the court suggested that six factors be considered: purpose, character, amount, alternatives, nature, and effect.

Purpose of the Dealing

Does it fit one of the purposes explicitly listed in the Copyright Act? Copying for the purposes of research, private study, education, parody, satire, criticism, review, and news reporting are all allowable purposes under Fair Dealing. Another way to define purpose is to ask: "What is the goal?"

Alternatives to the Dealing

Is there a non-copyrighted alternative? Is the copying even required to fit the purpose?

Character of the Dealing

How is the copied work dealt with? Limited copies with limited distribution would tend towards fairness.

Nature of the Work

Is the work being copied published, unpublished, and/or confidential? Would the copying lead to wider dissemination of the original? (One of the goals of copyright law.)

Amount of the Dealing

How much of the work is copied? A lesser amount would tend towards fairness, though it may be possible to deal with a whole work fairly.

Effect of the Dealing

Would the copying compete with the marketability of the original? If so, that would tend to be unfair.

"To conclude..."

"...the purpose of the dealing, the character of the dealing, the amount of the dealing, the nature of the work, available alternatives to the dealing and the effect of the dealing on the work are all factors that could help determine whether or not a dealing is fair.  These factors may be more or less relevant to assessing the fairness of a dealing depending on the factual context of the allegedly infringing dealing.  In some contexts, there may be factors other than those listed here that may help a court decide whether the dealing was fair." (CCH, 60).

To minimise the ambiguity of the six step analysis, some guidelines have been established to inform the copying practices conducted by UFV faculty, staff, and students. The UFV Copying Guidelines and Fair Dealing Requirements are detailed in the UFV Copyright Guide:

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