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Fair Dealing in Exceptional Circumstances

Sam Trosow, associate professor of Law and Information Science at Western University, has posted an analysis of Canadian fair dealing in these exceptional COVID-19 circumstances.  Details here

Copyright Information

Canada’s Copyright Act was updated in June 2012. The updates include greater rights for educational institutions, although many restrictions still apply. The paragraphs below briefly outline how copyright applies at Mount Allison University, and what has changed because of the Copyright Modernization Act.

Copyright: What it does and doesn’t cover

Copyright aims to protect the interests of creators of expressive works (text, art, music, charts, maps, photographs, etc.) by allowing only copyright owners the right to reproduce an entire work or a substantial part of it. Reproducing works can include photocopying, scanning, downloading or uploading. Copyright covers most works whether on the Internet or in print, unless stated otherwise on the work. Good academic practice requires attribution when copying the work of others, but restrictions on what can be copied still apply.

Copyright does NOT cover:

  • Facts and ideas (only their expression in a work is protected)
  • Insubstantial portions of a work
  • Works where copyright has expired (generally 50 years after the death of the creator, regardless where the work was published)
  • Other Public Domain materials (e.g. U.S. federal & state government information online or in print, works created before copyright law)
  • Government of Canada works (Recent changes mean permission is no longer required to reproduce federal government material for non-commercial use unless there is a notice to the contrary attached to the work. Details.)
  • Open access materials (creators have specified more open permissions to encourage public use of their online materials, e.g. with Creative Commons licenses, placing materials in open access repositories, etc.)
  • Works licensed for your use
  • Publicly available material on the Internet if used with attribution for educational purposes, unless clearly stated otherwise.

Use of copyright-protected materials at Mount Allison University is covered largely by:

  1. the Canadian Copyright Act as amended by the Copyright Modernization Act, 2012
  2. license agreements with individual rights holders, e.g. library subscriptions to electronic journal databases,
  3. case law (e.g. Supreme Court of Canada decisions on Copyright

    NOTE:  As of January 1, 2016, Mount Allison University ended its agreement with Access Copyright.

How has the Copyright Act changed?

The Copyright Modernization Act which reformed Canada’s Copyright Act, was passed in June 2012. Most new rules under the Act took effect in November 2012. The federal government noted it: “greatly expands the ability of teachers and students to make use of new digital technologies and of copyrighted materials for the purpose of education and study.” (Balanced Copyright). Some changes that affect educational institutions specifically:

  • “Education” a fair dealing right: The new Act permits making and using copies of copyrighted material for educational purposes (e.g. for display in a classroom, in tests and exams, as handouts, emailed to students enrolled in a class, posted on a password-protected site accessible only to students, and in coursepacks), as long as the use is “fair.” The Act does not define “fair”. Various guidelines exist to determine fair dealing. (See links below for more information.)
  • Parody and Satire a fair dealing right: The Act also extends fair dealing rights for parody and satire. These are added to the previously existing fair dealing rights to use copyrighted material for research, private study, criticism, review, and news reporting.
  • Publicly available material on the Internet: The Act allows educators and students to use publicly available material that copyright owners have posted for free use on the Internet. “Publicly available” means the materials have been posted without technical protection measures (digital locks) and without a clearly visible notice prohibiting use.
  • Performances, sound & video recordings: The Act removes the requirement for educational institutions to pay copyright holders to use films or broadcast recordings for educational purposes. (E.g., instructors can borrow or rent videos and show them in class). In addition, educational institutions can record a news program for later viewing by students.

What is “fair dealing”?

“Fair dealing” under Canadian copyright law is a users’ right to reproduce copyrighted works for research, private study, education, satire and parody, and (with attribution) for criticism, review and news reporting, without permission or payment. It is intended to be interpreted broadly.

Canadian case law has established six factors relevant to determining “fairness”:

  • The purpose of the dealing: The purpose must fall within one of the eight categories outlined above, including education.
  • The character of the dealing: The courts assess “character” by examining the number of copies made and by existing custom or practice. For example, widely distributing multiple copies of a work will likely be unfair. If the copying falls within standard practice within a trade or industry, the courts are more likely to interpret it as fair.
  • The amount of the dealing: Despite frequently cited “10 per cent rules,” there is no black-and-white formula for how much of a work can be copied fairly. The court case that established these fair-dealing criteria states: “[T]he 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. … 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.” [CCH Canadian Ltd. v. Law Society of Upper Canada, para 56]
  • Alternatives to the dealing: Fairness is more likely if a copyright-free alternative does not exist. Use may be considered unfair if reproducing a copyrighted work isn’t necessary to achieve the user’s goal of criticism, parody, education, etc.
  • The nature of the work: If the work was intended for wide dissemination or there is a public interest in its dissemination use is likely fair. If it was intended to be confidential, then less so.
  • The effect of the dealing on the work: Not to be considered as the most important factor in determining fairness. Requires evidence of economic harm.

Not all six factors need to be satisfied for use to be considered fair.


Fair Dealing in Canada - Myths and Facts. By the Canadian Association of Research Libraries. Sept. 2017.

How does copyright apply to online journals, databases, and other electronic resources at Mount Allison?

The MtA libraries subscribe to dozens of databases of online journals, electronic books and other materials. The licenses for these materials often include broad provisions for academic uses (e.g. permissions to copy to course management systems, coursepacks, for classroom use, and other uses beyond those permitted by the Copyright Act).

For assistance with linking to permanent URLs, see "Linking to Licensed Library Material from Moodle and Course Web Pages" on the library web site “Services for Faculty Members” page.

You can also request that digital sources be linked to from the library Course Reserve system. Print copies of articles, books, etc. can also be put on Reserve in the library. To request either of these, you can submit a request using the online Request Forms. See Placing Items on Course Reserve.

Does Mount Allison have an ‘Access Copyright’ license?

No. The Access Copyright agreement with Mount Allison University was ended December 2015.


Sources for further information

Mount Allison University guidelines and policies:

Copyright - Fair Dealing Policy (Policy #5320)
- MtA's version of fair dealing (revised August 2013. Includes guidelines and documents providing guidance on the application of the Policy) 

Other guidelines, policies and advisories:

CAUT Guidelines for the Use of Copyrighted Material Feb. 2013
- A very useful, easy-to-read, six-page guide; clarifies points of confusion.

CAUT Intellectual Property Advisory: Fair Dealing Dec. 2008
- This 9-page advisory describes clearly how to determine fair dealing, with a checklist for academic staff in Appendix A. (Note: Needs updating. Does not include three new fair dealing categories: education, parody, and satire.)

CAUT Intellectual Property Advisory: Retaining Copyright in Journal Articles July 2008
- A brief guide to why academic staff should retain copyright and how.

Western University Copyright Decision Map. Updated 2015.
- Very helpful 5-question guide to assist in making copyright decisions, with links to clear guidelines.


Copyright law and related resources:

Canada Copyright Act
- The official Act, from the Dept. of Justice Canada.

Copyright Modernization Act
- The 2012 amendments.

What the Copyright Modernization Act Means for Teachers and Students
- Government of Canada fact sheet on 2012 changes to the Copyright Act

Canadian Intellectual Property Office
- Information on all aspects of intellectual property, including copyright, patents and trademarks.

Canadian Copyright: A Citizen’s Guide. 2nd ed., 2013 by L. Murray and S. Trosow. KE 2799.2 M87 Reference (Main Floor)

Canadian Copyright Law. 4th ed., 2013 by L. Harris. KE 2799.2 H37 Reference (Main Floor)

Other copyright-related sites:

Ariel Katz on Intellectual Property, Competition, Innovation and other Issues
Professor, Faculty of Law, University of Toronto

Excess Copyright
By Howard Knopf, lawyer

Law professor and Canada Research Chair in Internet and E-commerce Law at the University of Ottawa

Sam Trosow
Professor of Law and Information & Media Studies, University of Western Ontario

Open Access
A MtA Library page.

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Questions? Please contact Wendy Witczak, Interlibrary Loans & Copyright Coordinator.

Copyright Tutorials