What is Fair Dealing?

Fair dealing is an exception in the Canadian Copyright Act which allows you to use other people’s material for the purpose of research, private study, criticism, review or news reporting, education, and satire or parody without having to seek permissions.

Fair Dealing only applies to the use of a “short excerpt” of a work in the Copyright Act, although a more expansive interpretation can be found in CCH Canadian Ltd. v. Law Society of Upper Canada (2004). 

In Canada, the two-step test for fair dealing was established by the Supreme Court of Canada, most notably in CCH Canadian Ltd. v. Law Society of Upper Canada (2004). When evaluating fair dealing the courts will normally consider if the use is under one of the allowable purposes for fair dealing, and then evaluate the fairness of the dealing using these six factors:

1. The purpose of the dealing – Was the use for commercial or research / educational purposes?
2. The amount of the dealing – How much was copied?
3. The character of the dealing – Was it a single use or ongoing? How widely was it distributed?
4. Alternatives to the dealing – How essential was the use of the work? Could the purpose have been achieved without using the work?
5. The nature of the work – Was there public interest involved? Was it previously unpublished?
6. The effect of the dealing on the original work – Did the use impact on the market value or sale of the original work?

What circumstances can inhibit fair dealing?

Whether a use qualifies as “fair dealing” depends on the specific circumstances of each case. One important factor that can limit or inhibit fair dealing arises when copyrighted works are protected by digital locks or technological protection measures (TPMs). These measures can include passwords, paywalls, licensing restrictions, or other access controls commonly applied to library-licensed electronic resources.

In Canada, the Copyright Act includes specific provisions that prohibit the circumvention of digital locks, even for purposes that might otherwise qualify as fair dealing. As a result, where a work is protected by a TPM, users may be legally prevented from accessing, copying, or reusing the material, regardless of whether the intended use would be considered fair. This creates an additional layer of restriction that can significantly limit the practical application of fair dealing in digital environments. Please read the Terms of Use of electronic materials you access to make sure that you can apply fair dealing to the material you access via digital locks, but often fair dealing may not be allowed. 

Fair Dealing Guideline

For TMU instructors, faculty, librarians and staff the Toronto Metropolitan University Fair Dealing Guideline applies to work being used for educational purposes.

Two-Step Test

When using fair dealing for an allowable purpose like for research and criticism, in particular where the aim is publication TMU faculty, instructors, librarians and students should use the two-step test to make an evaluation about fairness.