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In some cases, materials relevant to teaching or research may be copied without restriction. Older materials, for example, may be in the public domain. As for more recent works, it is becoming increasingly common for rightsholders to share materials they've created through Creative Commons licenses, or similar statements, that explicitly allow unlimited copying of the specified materials for certain puposes (generally non-commercial educational and/or research use). Relatedly, it may be possible to contact a rightsholder directly to secure permission for copying or other uses of certain materials.
It is more likely, however, that most of the third-party material (that is, material you did not create yourself) that you will wish to use while conducting UPEI teaching or research will be protected by copyright, and identfying and contacting the rightsholders of this material will often be impractical (or impossible). In most such cases, though, copying of this material for educational or research purposes can still be done, thanks to the following provisions:
Fair Dealing = Fair Play
The UPEI Library spends over a million dollars annually on purchases and subscriptions for a vast range of print and electronic publications. Having lawfully acquired this material on behalf of our users, we expect to be able to take every reasonable measure to share it with them, through lending and the services outlined above. But what is “reasonable”? It is here that fair dealing comes into play.
In its landmark 2004 ruling in CCH Canadian Ltd. v. the Law Society of Upper Canada (sometimes referred to as the “CCH Decision”), the Supreme Court of Canada affirmed fair dealing as a user right under the Copyright Act, and laid out the following six-point test of “fairness”:
(a) the purpose of the proposed copying, including whether it is for education, research, private study, review, parody, satire, criticism or news reporting;
(b) the character of the proposed copying, including whether it involves single or multiple copies, and whether the copy is destroyed after it is used for its specific intended purpose;
(c) the amount ** or proportion of the work which is proposed to be copied and the importance of that work;
(d) alternatives to copying the work, including whether there is a non-copyrighted equivalent available;
(e) the nature of the work, including whether it is published or unpublished; and
(f) the effect of the copying on the work, including whether the copy will compete with the commercial market of the original work.
The Supreme Court's support for fair dealing as a user right was strongly reaffirmed in its "pentalogy" of rulings on five copyright-related cases, issued in July, 2012.
** How Much Is Fair?
There is still no quantitative limit in Canadian law or jurisprudence as to how much copying of a given work (book, periodical issue, film, etc.) is allowable under fair dealing. Of the several fair dealing policies and guidelines promulgated in Canadian academia in the years since the 2004 and 2012 Supreme Court rulings, the most holistic and balanced is the CAUT [Canadian Association of University Teachers] Guidelines for the Use of Copyrighted Material (2013), which highlights the following "Amount" considerations:
In assessing how much of a work is fair to copy, copyright law does not set a single fixed percentage.
- Copying an entire chapter from a book is likely to be fair.
As the percentage of a work being copied increases towards and past 20 percent, more care should be exercised. If, for example, a book only contains two chapters then reproducing an entire chapter may be unfair.
Created by: Simon Lloyd, B.A., M.L.I.S.
University Archives and Special Collections Librarian
Date Created: 10-March-2011
Last Updated: 02-April-2020