Fair Dealing

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 to define fair dealing. This is just as it should be. Creativity is a process that lacks precision and definition; it should not be cause for surprise that an exception which supports creativity is similarly indeterminate.

And as to what Fair Dealing is not; it is not an invitation to copy without restriction. It is a modest measure; it applies only to certain activities and conditions are attached. For instance, citation is important. So too is careful consideration of the amount copied. David Vaver, an internationally renowned intellectual property scholar, 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 principle means by which copyrighted material can be used without authorization, during the term of protection. Such unauthorized use supports creativity, education, journalism, human rights, civic duty and personal wellbeing, just to name a few. Paraphrasing from the Copyright Act:

29. Fair dealing for the purpose of research, private study, education, parody does not infringe copyright.
29.1 Fair dealing for the purpose of criticism or review does not infringe copyright [if attribution is provided].
29.2 Fair dealing for the purpose of news reporting does not infringe copyright [if attribution is provided].

It is inconsistent within the law to affirm copyright in a work, and simultaneously reject the possibility of fair dealing with that same work. This has been emphasized by none other than Chief Justice Beverley Mclachlin of the  Supreme Court of Canada; writing for the court in 2004, she said: “Fair dealing is always available.” The Chief Justice then provided a multi-factored framework of analysis to aid in the determination of fair dealing.

Fair dealing’s origins lie in the English provision of fair abridgment. In Gyles v. Wilcox (1740), the 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.” 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… .” Perhaps the best part of the 1710 legislation was the requirement 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 to my attention.)

Those English principles would also find their way to the fledgling American nation and take shape as fair use. That measure is similar but different from fair dealing. Nevertheless, in the early 21^st century, courts on both sides of the 49^th parallel began giving more attention and broader interpretation to these exceptions. Fair dealing and fair use are vital in an age where copyright (once a trade mechanism) is intruding into personal endeavor.

Copyright is not, nor has it ever been, a grant of absolute control. Unfettered, unauthorized use is essential if copyright is to meet its goals of fostering creativity. There are no black and white rules that govern fair dealing; it is always a matter of nuance.