LibGuides UFV: Copyright: Fair Dealing: A Six Factor Analysis

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?"

CCH (54)
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From the decision:
In Canada, the purpose of the dealing will be fair if it is for one of the allowable purposes under the Copyright Act, namely research, private study, criticism, review or news reporting: see ss. 29, 29.1 and 29.2 of the Copyright Act. As discussed, these allowable purposes should not be given a restrictive interpretation or this could result in the undue restriction of users’ rights. This said, courts should attempt to make an objective assessment of the user/defendant’s real purpose or motive in using the copyrighted work. See McKeown, supra, at p. 23-6. See also Associated Newspapers Group plc v. News Group Newspapers Ltd., [1986] R.P.C. 515 (Ch. D.). Moreover, as the Court of Appeal explained, some dealings, even if for an allowable purpose, may be more or less fair than others; research done for commercial purposes may not be as fair as research done for charitable purposes.
Section 29 (Copyright Act)
Section 29.1 (Copyright Act)
Section 29.2 (Copyright Act)

Alternatives to the Dealing

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

CCH (57)
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From the decision:
Alternatives to dealing with the infringed work may affect the determination of fairness. If there is a non-copyrighted equivalent of the work that could have been used instead of the copyrighted work, this should be considered by the court. I agree with the Court of Appeal that it will also be useful for courts to attempt to determine whether the dealing was reasonably necessary to achieve the ultimate purpose. For example, if a criticism would be equally effective if it did not actually reproduce the copyrighted work it was criticizing, this may weigh against a finding of fairness.

Character of the Dealing

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

CCH (55)
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From the decision:
In assessing the character of a dealing, courts must examine how the works were dealt with. If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing. If the copy of the work is destroyed after it is used for its specific intended purpose, this may also favour a finding of fairness. It may be relevant to consider the custom or practice in a particular trade or industry to determine whether or not the character of the dealing is fair. For example, in Sillitoe v. McGraw-Hill Book Co. (U.K.), [1983] F.S.R. 545 (Ch. D.), the importers and distributors of “study notes” that incorporated large passages from published works attempted to claim that the copies were fair dealings because they were for the purpose of criticism. The court reviewed the ways in which copied works were customarily dealt with in literary criticism textbooks to help it conclude that the study notes were not fair dealings for the purpose of criticism.

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.)

CCH (58)
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From the decision:
The nature of the work in question should also be considered by courts assessing whether a dealing is fair. Although certainly not determinative, if a work has not been published, the dealing may be more fair in that its reproduction with acknowledgement could lead to a wider public dissemination of the work — one of the goals of copyright law. If, however, the work in question was confidential, this may tip the scales towards finding that the dealing was unfair. See Beloff v. Pressdram Ltd., [1973] 1 All E.R. 241 (Ch. D.), at p. 264.

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.

CCH (56)
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From the decision:
Both the amount of the dealing and importance of the work allegedly infringed should be considered in assessing fairness. If the amount taken from a work is trivial, the fair dealing analysis need not be undertaken at all because the court will have concluded that there was no copyright infringement. As the passage from Hubbard indicates, the quantity of the work taken will not be determinative of fairness, but it can help in the determination. It may be possible to deal fairly with a whole work. As Vaver points out, there might be no other way to criticize or review certain types of works such as photographs: see Vaver, supra, at p. 191. The amount taken may also be more or less fair depending on the purpose. For example, for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision. However, if a work of literature is copied for the purpose of criticism, it will not likely be fair to include a full copy of the work in the critique.

Effect of the Dealing

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

CCH (59)
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From the decision:
Finally, the effect of the dealing on the work is another factor warranting consideration when courts are determining whether a dealing is fair. If the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair. Although the effect of the dealing on the market of the copyright owner is an important factor, it is neither the only factor nor the most important factor that a court must consider in deciding if the dealing is fair. See, for example, Pro Sieben Media AG v. Carlton UK Television Ltd., [1999] F.S.R. 610 (C.A.), per Robert Walker L.J.

Copyright: Fair Dealing: A Six Factor Analysis

Determining Fair Dealing