Fair Dealing

Copyright guidelines when using library materials

Guidelines for scanning

It is important to understand fair dealing when determining what amount of a work can be scanned. Fair Dealing ordinarily constitutes:

• the use of one article from an issue of a journal
• one chapter from a book
• no more than a small portion of a collective work such as an anthology

Material exceeding these guidelines normally requires copyright clearance prior to access being provided. Obtaining copyright clearance can be lengthy and sometimes costly. Instructors should begin the process well in advance of the course start date.

Fair dealing and the Copyright Act

The Copyright Act allows individuals to make a copy for the purpose of research or private study or for the purpose of criticism and review, as long as the original source is credited. The following provides rules of thumb for adhering to copyright law and fair dealing standards.

• The information provided here is neither legal advice nor a complete guide.
  
• For more detailed information, see the Copyright Act or the CCH Supreme Court Judgment from 2004.

The Copyright Act says fair dealing is for the purposes of research, private study, criticism, review or news reporting. In the CCH Judgment, the Supreme Court has argued that fair dealing constitutes a user right balanced against the rights of the copyright holder. Furthermore, the Supreme Court argued that fair dealing should be broadly not narrowly interpreted. That said, fair dealing needs to fit the five permitted purposes.

6 deciding factors for fair dealing

The Supreme Court provided in the CCH decision six factors for deciding whether or not something is fair dealing:

• 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
• Character of the dealing
  “Single copies are fine, multiple copies tend to be unfair.”
• Amount of the dealing
  "...for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision.”
  
• Alternatives to the dealing
  “...patrons...cannot reasonably be expected to always conduct their research on-site...”
• The nature of the work
  “...the Access Policy puts reasonable limits on the Great Library's photocopy service.”
  
• Effect of the dealing on the work
  “...no evidence ...to show that the market for the publishers' works had decreased as a result of these copies having been made.”

Avoiding copyright infringement

Don't post copyrighted material on the open web

• Post material to a website restricted to members of your class such as BlackBoard. According to the Supreme Court in the CCH Decision: If multiple copies of works are being widely distributed, this will tend to be unfair. Posting material to the open web is wide distribution.

Link to existing materials where possible

• Linking to copyrighted material does not violate copyright. When you are linking you are not making a copy. Ethically, you shouldn't provide a link in a framed website that makes the copyright material look like it is coming from your website.

Don't re-digitize material

• Before digitizing material, first check if it is already available electronically from the University Library. If we have a licenced electronic version of a book or journal, we can probably create a persistent link so that a copy isn't made.

Reproduce only the minimum amount of a copyrighted work needed

• The Supreme Court has stated that ...for the purpose of research or private study, it may be essential to copy an entire academic article or an entire judicial decision. That said, you increase your chances of fair dealing by using the smallest portion possible of a copyrighted work. Don't use more than one article from a single issue of a journal or more than one chapter from a book. Use the shortest clip possible of a film. Don't use an entire copyrighted work without getting permission. Ask for advice if you aren't sure.
  (Text courtesy of the University of Calgary Library)