Fair Dealing Advisory

Background

The legal counsel for the Association of Universities and Colleges of Canada (AUCC) has prepared this fair dealing advisory which it recommended for adoption by each AUCC member outside Quebec that intends to operate under the Access Copyright Post-secondary Educational Institution Tariff.

The advisory outlines the copying of published works that can be made in print or electronic format by a university through its staff and faculty members under the exception for fair dealing in sections 29 to 29.2 of the Copyright Act without seeking permission of the copyright owner. The advisory does not apply to audio or video recordings.

The advisory does not address exceptions in the Copyright Act other than fair dealing. Depending on the circumstances, other exceptions in the Act may also permit the copying of works without the permission of the copyright owner. One example of an exception is section 29.4. It provides that it is not an infringement of copyright for an educational institution to make a manual reproduction of a work onto a dry-erase board, flip chart or other similar surface intended for the display of handwritten material. Another example is section 30.2 which provides that it is not an infringement of copyright for a library to do anything on behalf of any patron that the patron could do herself under fair dealing.

Some licence agreements that universities have with publishers that provide access to publications in electronic format restrict the making or dissemination of copies. Where there is a conflict between the terms of a licence agreement and the fair dealing advisory, the terms of the licence agreement apply.

Paragraph 10 of the advisory sets out the factors to be considered in determining whether the making of a copy for one of the fair dealing purposes is fair. If the copying is for one of such purposes and the making of the copy is fair, the copying can be made under the fair dealing exception without the permission of the copyright owner.

This advisory has been written to clarify fair dealing for access to university library resources. Fair dealing, of course, has wider application and is legitimately and reasonably called upon in other contexts and circumstances. While this advisory does not specifically address all such circumstances it can, as noted in clause 11, apply by analogy in certain situations. It is not unreasonable to expect for example that, subject to a consideration of the facts, fair dealing would apply in the context of an interlibrary loan request from a local public library to a university library.

You may also wish to consult the fair dealing provisions of the Canadian Copyright Act.

Questions can be forwarded to the individuals on the contact page of this site.