The two-part test: exemptions
To determine if something is Fair Dealing, a two-part test is applied. The first test is whether or not the use falls under one of the exemptions: research, private study, criticism or review, news reporting, parody and satire or education.
Research most often involves academic research but the courts have defined it more broadly to include nearly any kind of research; for instance, posting 30-second clips of songs on a website that sold digital music was determined to be fair use because it enabled consumers to do research in deciding whether or not to buy the songs.
Private study is just that: the making of a single copy for your own use (for example, photocopying or hand-copying sections of a book for reference). Private study explicitly does not include work done for a class or training program.
Criticism or review includes examples such as quoting from a novel or film (in which case the “quote” might be a video clip) in a review, or quoting from an academic work in order to argue against its point. Court rulings have suggested that to fall under criticism or review, the use must be critical of the work being used; for instance, it was ruled that a biography of Shania Twain could not use an interview with the singer taken from another book because it was simply reprinting the interview without critiquing it.
News reporting is perhaps the most self-evident exemption. It applies to reporting in any medium and users do not have to be recognized journalists; bloggers, for instance, could claim this exemption if they were engaged in news reporting.
Parody and satire means either the “spoofing” or sending-up of a particular work (such as the parodies of movies and TV shows found in places such as Mad Magazine and This Hour Has 22 Minutes) and, more broadly, the use of a work to make a social or political point through humour.
Education is, obviously, the exemption most relevant to teachers. Although there are more specific detailed exemptions for education laid out in other sections, how education applies to Fair Dealing is not explained in the Act. It seems certain that it will include formal education in a classroom but whether and how it will apply to online and distance education, homeschooling or other contexts is not yet clear.
The two-part test: Fair Dealing factors
If a use falls under one of the exemptions defined in the Copyright Act, six factors are then considered. These are not defined in the Act but were laid down in a court case which established that Fair Dealing was not just a legal defence but that “the fair dealing exception, like other exceptions in the Copyright Act, is a user’s right.” (http://www.canlii.org/en/ca/scc/doc/2004/2004scc13/2004scc13.html)
The six factors are:
What is the purpose of the dealing? In general, the more worthwhile the use is seen to be, the more likely it is to be considered Fair Dealing. This includes non-commercial purposes and purposes where the public good is served, though commercial purposes may still be Fair Dealing.
What is the character of the dealing? This question asks what was done with the work. If the work was copied, how many copies were made? How widely were they distributed or made available? Were copies destroyed after use? Did the use follow standard industry practice?
What is the amount of the dealing? Contrary to popular belief, there is no “safe” amount of any text that can be used without infringement. How much of a work is used is one of the questions considered, but “it may be possible to deal fairly with a whole work” – particularly in the case of texts such as photographs or advertisements.
What alternatives to the dealing are available? How important was the copyrighted work to the use? Could the same purpose be achieved with a work that was not under copyright? (Note, however, that the Court ruled that the possibility of using a licensed work was not relevant to determining whether a use was fair or not.)
What is the nature of the work? There are two issues here. First, the Court found that it was more likely to be Fair Dealing if a work was unpublished, rather than published (since it would make the work more widely available). However, a use was less likely to be Fair Dealing if the work was confidential.
What is the effect of the dealing on the work? If the value of the original work, or the market for it, is likely to be harmed by the use, then it is less likely to be Fair Dealing. This is particularly true if the new work competes directly with the original. It’s important to keep in mind, though, that this is only one of the factors under consideration, so a use that fails this test – quotations from a book in a negative review, for instance, or a parody of a film – can still be Fair Dealing.
In addition to Fair Dealing, the current Copyright Act provides a number of other exceptions. The most significant of these for teachers is the clause on Non-commercial User-generated Content, which allows for the “remixing” of copyrighted works so long as it is not done for commercial reasons. This does not have to be done specifically for educational reasons (though it certainly might be, and a work might fall both under this clause and Fair Dealing) but the source and author, performer, maker or broadcaster must be identified. The user has to have good grounds to believe that the original works used were not infringing copyright (so you could, for example, use a scene from a movie posted by the movie studio, but not one posted illegally to a video-sharing site) and that the new work doesn’t negatively affect the market for the original work.
As well, educational institutions are given certain specific rights, including the right to:
- copy a work (“or do any other necessary act”) to display it, unless the work can be obtained in an appropriate format for a reasonable fee with reasonable effort;
- perform a dramatic work, sound recording, show a film “or other cinematographic work” so long as the copy does not violate copyright and was obtained legally;
- copy or play for students works available on the Internet, so long as the teacher has reason to believe they were posted legitimately and the use was not forbidden by the copyright holder, and the source, author, performer, etc. are given;
- make and/or play for students a single copy of a news or news commentary program (not including documentaries) within a year of recording; and
- communicate lessons to students via telecommunications and record these lessons, so long as steps are taken to limit the access to students.
Consequences for media education
Because the changes to the Copyright Act have not yet been tested in the courts, it’s difficult to say for sure how they will be applied. However, there are a number of conclusions we can draw with reasonable certainty.
Excerpts from a work, and in some cases the entire work, may be used in the classroom for educational purposes. In general, the rule of thumb is to only use as much of any work as is necessary to meet your purpose; for instance, do not show an entire film if the same purpose can be met by showing selected scenes. However, if you need to use the entire work, particularly in the case of a short work (such as an ad, a photograph or a painting) you can do so under Fair Dealing.
Material posted on the Internet by (or with the permission of) the copyright holder may be used in the classroom for educational purposes. Before using any material posted on the Internet, make an effort to determine if it was posted with permission of the copyright holder. However, there is no burden on the teacher to ensure that material was posted legitimately; it can be used so long as it is not protected by any technological protection measures and there is not a clearly visible notice (“not merely the copyright symbol”) forbidding its use in a classroom context.
Teachers and students may use and modify copyrighted works for educational purposes. Fair Dealing does not just allow the performance and copying of a copyrighted work, but also its use in the creation of a new work. In fact, the more the new work is different from the original, the more likely the dealing is to be fair (since it is less likely to compete with the original). For instance, this “annotated” version of the opening sequence to the film The Royal Tenenbaums, created by the Museum of the Moving Image, would almost certainly be considered Fair Dealing under the current Act: http://www.movingimagesource.us/flash/mediaplayer.swf?id=11/767
Teachers and students may “remix” copyrighted works for educational or other non-commercial purposes. As well as the Fair Dealing exemption for education, the changes to the Copyright Act introduce a clause allowing for Non-commercial User-generated Content. Both this and the educational exemption allow teachers or students to remix existing media works as part of a media literacy lesson, as students did in this video which analyzes the effects of the media on body image among women and girls:
Teachers and students may not use or modify works protected by Technological Protection Measures. Technological protection measures, or “digital locks,” are mentioned several times in the current Copyright Act. These include any tools used to prevent the copying or modification of a work such as anti-copying measures on CDs, DVDs or web pages. Although these clauses will likely receive further interpretation from the courts, for the time being it is safest to assume that no use of any work protected by digital locks will be considered Fair Dealing.
Sources must be acknowledged. An important factor in considering whether a use is Fair Dealing is whether or not the work’s creators are acknowledged. This will likely include the legal copyright holder and any other authors (director, writer, performer, etc.) who can be identified.
Public domain, licensed or Creative Commons works remain the safest option for classroom use. Keep in mind that while Fair Dealing has been defined as a right and not just a defence, the fact that a use was Fair Dealing does not prevent the owner of a copyright from suing you or your school board. As well, one of the factors that determine if a use is Fair Dealing is whether there were non-copyrighted works available that might be used for the same purpose. Before your or your students use a copyrighted work, consider if there are any materials available in the public domain under Creative Commons licenses or licensed to your school boards that will serve the same purpose.
However, don’t feel you need to compromise your educational objectives to avoid using copyrighted work: a lesson about TV advertising in general may work using old ads that have fallen into the Public Domain, one that is specifically about modern advertising (about gender messages in advertising, for instance) will likely need to use ads that are under copyright.
Alternative media resources:
- You can search for works covered under Creative Commons licenses using the CC Search Engine. (http://search.creativecommons.org/) Before using a work, make sure that your use is covered by its particular license; you can learn more about CC licenses at http://creativecommons.org/licenses/.
- All works in the Internet Archive Moving Image Archive (https://archive.org/details/movies) are in the public domain.
*Note: This information is NOT intended as legal advice. If you are facing a legal issue dealing with intellectual property law, consult a lawyer.