To teach students to be media literate, they -- and their teachers -- need to be able to critically engage with media. That may seem obvious, but until last year teachers' ability to use media texts in the classroom was extremely limited by the Copyright Act. Thanks to the expansion of the Fair Dealing exemption, fortunately, teachers and students are now able to use media in much more meaningful ways.
Fair Dealing is the legal right that Canadians have to use copyrighted material without getting permission from the copyright holder. Under the old Copyright Act, only a very narrow range of uses were considered Fair Dealing, and teachers were only able to use media in very limited ways. In particular, many activities key to media education -- selecting and compiling clips, creating annotated texts, assembling clips or images to build an argument -- were not allowed.
One of the most significant changes made to the Act last year was adding "education" as a Fair Dealing exemption, which means that teachers now have a lot more leeway in using media in the classroom. It doesn't mean, though, that all classroom use of media is allowed. Instead, any use that falls under one of the Fair Dealing exemptions (research, private study, criticism, news reporting, parody and satire, and education) has to be examined under six conditions:
- What is the purpose of the dealing? This question mostly comes down to whether or not you are aiming to make money from your use of the media product. Use for a commercial purpose may still be Fair Dealing, but non-commercial use makes it more likely that the dealing will be fair.
- What is the character of the dealing? In other words, what is being done with the media product? Acknowledging sources, making the fewest copies you can and keeping tight control over those copies help to make the use of a media product fair.
- 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. With longer works, though, you're better off using clips or segments of a media product.
- What alternatives to the dealing are available? Could you have achieved the same purpose without the media product, or using materials that weren't 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? This question is the least relevant to teachers, since it mostly revolves around using unpublished work (which is more likely to be Fair Dealing, since it would make the work more widely available) and confidential material (which is less likely to be Fair Dealing.)
- What is the effect of the dealing on the work? This question is why you can't just show a movie in class, or copy a whole article for the class to read, and call it Fair Dealing: in both those cases you're doing the same thing with the product that you would normally pay to do. Any use of a media product that is likely to hurt its market value is less likely to Fair Dealing, though a use that fails this test – quotations from a book in a negative review, for instance, or a parody of a film – may still be.
To help teachers understand what the new Copyright Act allows them to do in the classroom, we've added a section on Fair Dealing for Media Education to our Intellectual Property section that looks at the subject in more detail, as well as covering some other exemptions for teachers and providing some general advice on good practice when using media products for media education.
For more general information on copyright and intellectual property, check out these MediaSmarts resources:
We also have resources for teachers who'd like to address intellectual property issues in the classroom:
Up, Up and Away!™: In this lesson for Grades 7-8, students encounter the key concepts of intellectual property, learning the difference between copyright and trademark and coming to understand how these affect how media products are created and sold. The lesson uses the legal decision regarding the rights to the comic book hero Superman to help students understand the different ways in which intellectual properties can be owned, leased and sold.