Understanding Fair Dealing: How Canada’s Copyright “Defense Argument” Works and When It Doesn’t

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Copyright law grants creators exclusive rights, but it also carves out socially useful exceptions so scholarship, commentary, and innovation can flourish. In Canada, the key exception is fair dealing—the statutory defence that lets users copy protected works without permission if certain conditions are met. Misunderstand fair dealing, and you risk either under-utilising valuable content or overstepping into infringement. Below is a practical guide for Ontario businesses, educators, and creators on what fair dealing covers, the factors courts apply, and best practices for staying on the right side of the Canadian Copyright Act.

What Exactly Is Fair Dealing?

Fair dealing is not blanket permission to copy. It is a limited defence that applies to specific purposes listed in the Copyright Act:

• Research
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• Private study
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• Criticism or review (with source attribution)
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• News reporting (with source attribution)
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• Education
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• Parody or satire

If your use doesn’t fall into one of these categories, the analysis ends—you need a licence or the material must be in the public domain. If it does, courts move to a multi-factor “fairness” test established by the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada (2004).

The Six Fairness Factors

1. Purpose of the Dealing

Is the use for one of the enumerated purposes, and is it commercial or non-commercial? Courts are more lenient when the motive is scholarly, charitable, or informational.

2. Character of the Dealing

How is the work dealt with? Single copies for individual use weigh in favour; widespread or repeated distribution may not.

3. Amount of the Dealing

Both the quantity copied and the qualitative importance matter. Copying the “heart” of a work—even if short—can weigh against fairness.

4. Alternatives to the Dealing

Could the purpose be achieved without copying, or by using non-copyrighted material? If reasonable alternatives exist, fairness diminishes.

5. Nature of the Work

 Is the work published, confidential, or intended for public dissemination? Copying unpublished or sensitive work is less likely to be fair.

6. Effect of the Dealing on the Work

Does the copying compete with or undermine the market for the original? A negative market impact weighs against fairness.

No single factor is decisive; courts balance them in context.

Fair Dealing vs. U.S. Fair Use

While U.S. “fair use” has an open-ended list of purposes, Canadian fair dealing is purpose-specific. That makes the initial categorisation critical in Canada. However, after CCH and subsequent Supreme Court cases—SOCAN v. Bell (2012) and Alberta (Education) v. Access Copyright (2012)—Canadian law interprets the listed purposes broadly, giving users considerable flexibility.

Common Scenarios and How Courts View Them

Educational Course Packs

The Federal Court has held that copying up to 10% of a work for classroom use may be presumptively fair, but this guideline is contested and fact-specific. Always pair copies with clear usage policies and source citation.

News Reporting Clips

Broadcast clips with commentary and attribution generally fall under news reporting. However, rebroadcasting an entire program without transformative content likely fails the amount and purpose factors.

Parody Memes

A comedic meme using a recognisable image can be fair if it transforms the work for parody. But simply reposting the original image with minor edits may not satisfy the character and amount factors.

Corporate Training Materials

Copying an article for in-house training straddles research/education and commercial use. If the company profits from the training, courts may weigh the purpose factor against fairness unless the excerpt is minimal and properly attributed.

Practical Tips to Strengthen a Fair Dealing Claim

• Document Purpose – Keep records showing the dealing is for research, education, etc.
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• Use Short Excerpts – Copy only what is necessary to achieve the purpose.
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• Transform When Possible – Add commentary, analysis, or parody to tilt the “character” factor in your favour.
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• Attribute Sources – Mandatory for criticism, review, and news reporting, and helpful for other categories.
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• Secure Licences for Gray Areas – When in doubt, obtain a licence or use open-licensed alternatives (Creative Commons).
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• Implement Policies – Institutions should maintain fair dealing guidelines and train staff.

Pitfalls to Avoid

Interaction with Other Laws

CASL

If you email copyrighted content in marketing materials, ensure compliance with Canada’s Anti-Spam Legislation, including opt-in requirements.

Privacy Law

Using personal photographs in criticism or satire must still respect privacy statues and the Personality Rights under Ontario’s common law.

Moral Rights

Even if copying is fair, altering a work in a way that prejudices the author’s honour or reputation can infringe moral rights.

The Role of Licences and Collective Societies

Fair dealing is a defence—not a guaranteed safe harbour. Collective societies like Access Copyright and SOCAN offer blanket licences that cover uses beyond fair dealing. Assess the cost-benefit of a licence versus potential infringement risk, especially for high-volume or commercial applications.

How AMAR-VR LAW Can Support

• Fair Dealing Audits – Evaluate your organisation’s copying practices against statutory factors.
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• Policy Development – Draft internal fair dealing and copyright policies for staff and contractors.
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• Licence Negotiations – Secure cost-effective licences when fair dealing is insufficient.
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• Risk Mitigation – Defend against infringement claims or draft proactive legal opinions to protect your operations.
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• Training Workshops – Equip your team with practical know-how on copyright compliance.

Conclusion

Fair dealing is Canada’s copyright “safety valve,” enabling vital activities like research, education, and commentary. Yet its flexibility is balanced by a nuanced, fact-specific test. By understanding the six fairness factors, documenting purpose, and limiting copying to what’s necessary, Ontario businesses and creators can leverage fair dealing confidently while avoiding costly missteps.

Have questions about whether your planned use fits within fair dealing—or need help designing compliant content workflows? Contact us today for a consultation. We’ll provide tailored guidance to keep your creativity—and your compliance—flowing.

Frequently Asked Questions (FAQs)

1. Is fair dealing in Canada an automatic right to copy any copyrighted work?
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   No. Fair dealing only applies for specific purposes listed in the Copyright Act (such as research, private study, education, criticism, review, news reporting, parody or satire). Even if your use qualifies, you must also meet the fairness test based on six factors.
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2. What are the six fairness factors Canadian courts consider?
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   Courts examine the purpose of the dealing, character of the dealing, amount copied, availability of alternatives, nature of the work, and effect on the original work’s market.
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3. Does Canadian fair dealing allow more freedom than U.S. fair use?
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   Not exactly. Canada’s fair dealing is purpose-based, while U.S. fair use allows a broader range of purposes. However, Canadian courts have interpreted the listed fair dealing purposes generously after key Supreme Court cases, offering significant flexibility when properly applied.
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4. Can businesses rely on fair dealing for internal training or marketing?
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   Possibly, but the commercial context may weigh against fairness. For internal training, using short excerpts with clear educational purpose and proper attribution strengthens the defence. For marketing, especially where profit is involved, securing a licence is typically safer.
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5. How can AMAR-VR LAW help with fair dealing compliance?
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   AMAR-VR LAW advises businesses and institutions on applying fair dealing correctly, drafting internal policies, securing licences where necessary, defending infringement claims, and conducting proactive compliance audits to reduce legal risk.