What is Fair Dealing? A textbook might say, “An exception to copyright, provided certain conditions are met.” A good textbook would also tell you there is no precise way of defining fair dealing. Which is as it should be. Just as the process of creativity lacks precision and definition, fair dealing is similarly indeterminate.
What must be understood is that fair dealing is not an invitation to copy without restriction. It is a modest measure; it applies only to the activities of private study, research, criticism, review, and news reporting. And, there are conditions attached. Citation is important, as is careful consideration of the amount copied. David Vaver writes, “the dealing must be fair in relation to its purpose and medium.”
Yet modest as the measure is, fair dealing is critical to the system of copyright. It is the only component within our Copyright Act that supports creative effort. It permits the unauthorized reproduction of copyrighted material for some good-faith productive purposes. Paraphrasing from the Copyright Act:
29. Fair dealing for the purpose of research or private study does not infringe copyright.
29.1 Fair dealing for the purpose of criticism or review does not infringe copyright if [attribution is] mentioned.
29.2 Fair dealing for the purpose of news reporting does not infringe copyright if [attribution is] mentioned.
As I noted in one of my earlier posts, it is inconsistent within the law to affirm copyright in a work, and simultaneously reject the possibility of fair dealing with that same work. The Canadian Supreme Court said in 2004, “Fair dealing is always available.” (The Justices actually said much more, I’ll get to that another day.)
Fair dealing’s ancestry stems from the provision of fair abridgement. In Gyles v. Wilcox (1740), the English courts decided, “…the second author, through a good faith productive use of the first author’s work, had, in effect, created a new, original work that would itself promote the progress of science and thereby benefit the public (quoted in Loren 1997).” The English law of the day was the Statute of Anne (1710), whose title began with the words, “An Act for the Encouragement of Learning…”
By the way, part of the 1710 legislation required that for each book printed, nine copies “upon the best paper” were to be given to “… the Royal Library, the Libraries of the Universities of Oxford and Cambridge, the Libraries of the Four Universities in Scotland, the Library of Sion College in London, and the Library commonly called the Library belonging to the Faculty of Advocates at Edinburgh respectively.”
My thanks to John Willinsky for bringing this delightful historical fact forward, and to Karl Erik-Talmo for his website concerning the History of Copyright.
CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13
Loren, Lydia. 1997. Redefining the Market Failure Approach to Fair use in an Era of Copyright Permission Systems. Journal of Intellectual Property Law 5 (1).
Talmo, Karl-Erik. The Statute of Anne 1710.
Vaver, David. 2000. Copyright Law. Toronto: Irwin Law